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Did Sweden really make it illegal to sell imported Nintendo 64 games (and *only* those) in the later half of 1997? I'm re-reading my old Super PLAY magazines from the 1990s. Since before the Nintendo 64 was released in Sweden/Europe, and after it had occurred, the magazines were full of ads selling imported USA and Japan Nintendo 64 consoles and games. Then, in one issue in the later half of 1997, they included a small note about how it's now illegal to sell imported Nintendo 64 games in Sweden (but not to import them yourself). After that, all the following issues of the magazine have all mentions of imported Nintendo 64 games removed from all the ads. However, they continued to advertise the sale of imported games for PlayStation, Saturn and all other consoles except for the Nintendo 64. I find this extremely weird. Did they really pass a law in Sweden in late 1997 which specifically disallowed the selling of imported Nintendo 64 games -- not just video games in general? If so, that's the oddest/most specific law I ever did hear. The magazine in question always seemed to "barely tolerate" what they called "grey importers", so they never mentioned this again that I can remember/find. I have no idea how I'd find out the details of this today. | I've found Commission Decision 2003/675/EC which sheds light on what exactly happened here (more digestable press release here). Basically, there was a dispute involving Nintendo and its various independent distributors who had exclusive distribution rights in their respective territories, Bergsala AB for Sweden. Note this wasn't simply a matter of Bergsala's rights being violated, but rather a scheme to reduce parallel imports/exports which the Commission found to be anti-competitive. For most parties, this was brought to an end in December 1997 (see section 2.2.11 on pgs. 54-55). So no, there was no change in the law, but the anti-competitive scheme stopped in late 1997. Weirdly this should have resulted in the possibility for more imports, but since those imports would no longer have artificially higher prices, perhaps the advertisements and/or imports were no longer worth economically worth it. Or perhaps Bergsala pivoted to greater enforcement the exclusive rights it did have, even if this didn't include the ability to block parallel imports according to EU competition law. In any case, trade of Nintendo products in Europe was greatly altered in late 1997. Please take my summary with a grain of salt, I'm not very well versed in the field of commerce and I've already misunderstood the decision at least once; check the cited decision for proper details. | There is nothing illegal about selling used bikes online. Importing goods is subject to legal regulation such as customs duties. These goods might even be subject to punitive steel and aluminum tariffs since bike metal could easily be converted to metal for other purposes. And, if the bikes have fake trademarks, they might be interdicted, although the "first sale rule" makes import of bikes with real trademarks legal. There is nothing remotely related to copyright at issue in your proposal. | Maybe You linked to the publication of a patent application, not to a patent. Based solely on looking at the format of the number the answer would be, Yes, unless it eventually became an issued patent. As it happens, it did become issued patent US9066511B2. That would make the answer no. Since the application was filed before you started selling them, the fact that you were selling them in 2017 could not be used to challenge the patent. I say the answer is maybe because the patent has been disputed in court and I do not know if the outcome has left the patent valid. You can look this up at the USPTO Public PAIR. Then you need to search with either the patent number or the publication number. When you get to the record of the history of that application look at the Image File Wrapper tab. | There appears to also be bribery of local officials as well. Not to mention, He operates with impugnity out of "The North Pole" which is I believe a TRADEMARK of a certain (now aging) USA male porn actor. I'm SO guessing that Santa is gonna appear out of nowhere, when the arctic oil drilling rights are being carved out among the abutter nations...and he's going to sit his fat tuchie all over those rights. Yaw, biotches! SANTA be in da hous! EDIT: it's almost certain that if Santa delivered a "My Little Pony" doll to little Elise in Akron, Ohio, USA...he violated a bevvy of Bern convention laws around intellectual property. Come to think of it..."Santa" is somewhat of a MODEL for "China" when it comes to IP law... | If the ability to get a Pannini is conditioned on buying paper towels for money, then he isn't really selling paper towels for $2 and the Pannini for free, he is really selling a package consisting of paper towels and a Pannini for $2, so it would probably still be illegal. The phrase lawyers and judges use to talk about attempts to create loopholes like this one is "too clever by half", which means: "Shrewd but flawed by overthinking or excessive complexity, with a resulting tendency to be unreliable or unsuccessful." | Yes, it's absolutely legal. It turns out that UK retailers offer replacement out of their own politeness and are not required to do so by law. If they gave you refund then that's all they need to do. | 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. | Does a situation like this constitute breach of contract and/or a violation of advertising laws? No. There is not enough information that would lead to a finding of either. It is unclear how customers would be allegedly affected (if at all) by the release of a product at a different store, let alone where the goods or services at issue are digital and require no physical presence at a venue or premise. Except for very specific factual circumstances, a change of sales venue would hardly be cognizable as deceptive or unfair practice. Also, prior to purchasing or reserving a game, there is no contract between the public and the developer/supplier. Potential customers typically are not entitled to a specific performance by the developer. Even if [Phoenix Point] supporters' decision were provably based on the prospect of release at Steam, your description nowhere reflects that there was a mutually conscious exchange (or promise of an exchange) of considerations involving the parties' support of a game and the counterparty's release of the game at a specific venue. Absent that meeting of the minds, either party's reliance or expectation on the other is irrelevant. Generally speaking, the sole cruciality of either party's motives does not create legal obligations. |
How can my non EU girlfriend stay in Italy more than 90 days? My girlfriend wants to come to Italy with me (an EU citizen). She is not an EU citizen and wants to stay for more than 90 days in Italy. She is 19 years of age and has a grandaunt (who is an Italian citizen) that is willing to let her live in her house, and declare that she is taking care of my girlfriend. What laws, if any, would allow such a person to stay more than 90 days in Italy? | Unfortunately, there are no EU visa’s for non-family members on the basis of a romantic partnership or relationship. The EU recognizes family members to be facilitated entry and residence as follows: Article 2 Definitions For the purposes of this Directive: 1. ‘Union citizen’ means any person having the nationality of a Member State; 2. ‘family member’ means: (a) the spouse; (b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); 3. ‘host Member State’ means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence. Some Member States, potentially Italy included, recognize domestic partnerships as equivalent to marriages. Maybe you and her are able to come to peace with this idea that for a longer stay, you two would have to make deeper commitments. Maybe that is a non-question, and can work well if that is the case in Italy. Other than that merely on this basis, there is not much room to consider. If there are other facts that may be relevant, for e.g., she may apply to a university and get a student visa; maybe the familial tie you mentioned or other familial ties or ancestry may entitle her to naturalization and citizenship, but these questions vary from state to state; if she’s from a widely recognized less democratic country where she was subjected to or has a well-funded fear of persecution as a member of a social, ethnic or “racial” group or for political opinion or faith, asylum may be another option. | You are entitled to at least see, and probably get a copy of, any document you sign. If you insist, they will have to show you or give you a copy. It may well be that they are supposed to give you a copy even if you do not ask. But if you are going to insist, allow a bit of extra time at such appointments. If they describe the document, even in rather general terms, your signature is probably binding, unless they have significantly misrepresented the document. If they tell you it is consent to be treated and it is actually an agreement to purchase a timeshare, that would be fraud and the document would not be valid, but that would be very unlikely. There might be some provision that you do not like, but such agreements are usually fairly standard, and also usually not very negotiable if you want service at that office. Still, it is better practice to at least look over and get a copy of any document you agree to. | germany Visitors in hotels must be registered and the hotel must keep the paperwork for a certain duration. According to §29 Bundesmeldegesetz, foreigners who are required to be named in their registry need to show an identity document (groups might have summary listings for some). There are some optional simplifications. Paying by credit card may count as identity verification. From context where this law is placed, it is not about interpersonal issues in the hotel. Germany requires all residents to register with their municipality of residence, and registering hotel visitors closes loopholes. §28 immediately before this is about sailors on river barges, §32 is about hospitals. | 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. | This is a tricky question on the intersection of visa and tax laws. It is tricky because every country can make its own rules that apply when you are in that country or do business in that country. Even within the EU, there is no uniform approach because freedom of movement merely covers the right to work in a country, but not the rules which have to be followed when doing so. Thus, you have to fall back to reading each individual country's rules and legislation. In general: Whether you are even allowed to work or which work activities are permitted depends on your visa or visa-free status. If you are a permanent resident or citizen of the UK, you can come to and work in every EEA country, until the end of the Brexit transition period, subject to the same rules as residents in that country. Often, visa-free visits or business visa allow some business activities such as attending meetings with clients or collecting information, but not performing actual work. If you're interested in what business activities the UK allows visitors from other countries to do, take a look at the visitor rules. Income tax may be due at the place of tax residency or where the income is generated/earned, in particular where you actually perform the work. There is a widespread belief that you only gain tax residency after staying in one country for 6 months, but this is misleading in the general case: every country makes its own rules, and income tax may be due even without (permanent) tax residency. The relevant countries (the country where you work and the country where you normally reside) might have a tax agreement that specifies where tax is due. Within the EU, it is fairly common that a person works in a different country than the one they reside in, so there is a well-developed network of tax treaties. Often, certain activities are exempt from local taxes, such as compensation for visiting researchers or regular employment. There's also a good chance that profit from independent work / business profits are only taxable at the place(s) where that enterprise has a permanent establishment – but it depends on the details. This section is based on the OECD model tax treaty (https://doi.org/10.1787/mtc_cond-2017-en) which most treaties follow closely. If no tax treaty exists that exempts your income from local taxation, you must consult the local tax laws. VAT rules are entirely different, and for B2B services are generally taxed at the location of the client (place of supply rules). But every country makes its own rules. Exception: within the EEA, cross-border B2B supply is always taxed at and by the client via the reverse-charge mechanism. So things can get quite tricky, and a business visitor should inform themselves beforehand what activities they are allowed to perform abroad and whether there are tax implications. is it any different from a UK author going travelling, taking lots and lots of notes, or even writing his/her next novel whilst in various locations, and publishing once returned to the UK? Here no tax implications arise because the travelling author is not paid during their travels, but they have to consider visa rules when performing their work. Such rules often have exemptions for artists. However, it depends on the rules of the travelled country. what basis does a government have for deciding "where" work was done? Each country is sovereign and can make its own rules. How would that apply if a team of software developers had a virtual "pair programming" session, with one in USA, one in UK, and one in the Far East ? "Where" has that software been written? It is not generally relevant where software was written, aside from copyright or export regulation issues which might have their own rules. Since each of the three programmers is working in their own country, no particular visa or income tax issues arise. However, if they have a common employer, the employer does have to consider the local employment laws regardless of where the employer is established, which may include paying some taxes in every country. | "the birthdate is on or after November 14, 1986" refers to your birthdate (the birthdate of the parent is irrelevant). "Citizen at birth" means that, if the conditions describe hold, the person has been a citizen ever since they were born, and there is no requirement for parents to register their citizen children as citizens. Mention of age 18 is relevant in case a person's parents are not married to each other at the time of birth. A person who is a citizen at birth does not (technically) have to apply for a Certificate of Citizenship but if you want to document your citizenship, you have to file that form (but simply applying for a US Passport is much simpler and more useful). Since you are at least 18, you can file it on your own, otherwise the U.S. citizen parent or legal guardian must submit the application (which is another way that 18 becomes relevant). | Close family members can stay as long as the tenant wants The tenant is entitled to "quiet enjoyment" of the property which includes living with their close relatives - spouse, de facto and children would all qualify; parents and siblings might as well. It doesn't matter if these people are children or adults. You cannot contract out of this as you are not allowed to discriminate in housing based on family situation. The tenant is also entitled to have non-relative house guests stay for as long as is reasonable. A month or so would be reasonable; longer than that and it starts to look like a sub-lease for which they would need your permission. There is generally a limit under texas law of 3 adults per bedroom but that doesn't seem to be an issue here. I also can't see where having a non-resident's mail delivered to the property is something you have a say about. I'd be very careful if I were you because it seems like you are on the wrong side of the law here. | She never said that She said: When I joined that family, that was the last time, until we came here, that I saw my passport, my driver's licence, my keys. All that gets turned over With respect to my adult children and their passports, the same is true in my house. I ask them for their passports when they aren’t needed, they give them to me, I store them in a safe place and I give them back to them when they need them. That’s just a sensible precaution against them being lost and in no way illegal. Now if I took their passports without permission and withheld them when they wanted them, that would be illegal as it would for anyone else including the Queen (who, I’m sure, had absolutely nothing to do with it - that’s the job of the Keeper of the Royal Passports or some such). Similarly, if you came to my house and I offered to take your coat and you gave it to me and I gave it back when you left, that would be perfectly legal. When I pull up in my car, I put my keys in a bowl in the laundry (unless I forget and then I can’t find them and it’s really annoying). I would prefer instead to have an employee jump into the car, park it and put the keys in their bowl so that when I want the car latter, it’s their job to remember where they left the keys. But I can’t afford that. |
My degree was removed as on option at my college I attended Our Lady of the Lake Universery in San Antonio, TX and was seeking an RN-BSN degree. I took a year off when I had a baby but when I returned, I found out that my degree was no longer offered. They told me they allowed everyone to finish but since I was technically not enrolled at the time, I would not be given this option. They advised me to utilize their sister school in Kansas through their online program. I was accepted and told the classes I took at OLLU would be accepted as part of my GPA but would not count toward my degree. So basically I had to start all over. I enrolled at UT Arlington and received the same response. I have over $13k in student loans from OLLU and nothing to show for it. Can I get these loans discharged? | Student loans that cover tuition and other educational expenses are for the charges that you incur by being enrolled. There may be some relationship between being enrolled and a career goal such as a degree or a job, but what you bought was the right to be in a class. You do in fact have something to show for the fees paid. Your issue is mainly with the university and not with the agency that lent you the money. The lender does not purport that you will receive a degree, so they have not been engaged in any wrong-doing. The prospects for suing the university to force them to let you complete the degree program are slightly better but still negligible. It is only technically possible to repudiate a student loan via bankruptcy, if you can prove that repaying the loan would impose an undue hardship on you (and you still have to go through the bankruptcy process). | Basically: what Flup said in his last paragraph (and so upvoted accordingly). Every one of the practitioners you named has an undergraduate degree from the UK, and an undergraduate degree from Canada. This, presumably, is because you're not permitted to practise law in most jurisdictions unless you have some kind of qualification in the law of that particular jurisdiction. The laws of each country, and moreover, the way in which cases are decided and in which each country's legal system works, varies so tremendously that you need to study the particulars for each jurisdiction before you can practice there. Regarding Canada: from this site: You must complete a Bachelor of Laws (L.L.B.) program or Juris Doctor (J.D.) program in order to qualify for bar membership in any Canadian province or territory. This generally takes three years to complete. In England and Wales, you can now take a law conversion course in place of an undergraduate law degree as a first stage towards being qualified. I suspect, however, looking at the dates of the judges you list, that the law conversion course wasn't an option at the time they got their qualifications, so their only option was a full undergraduate course. So the answer is: they each have two undergraduate qualifications, one from each jurisdiction, so that they could qualify to practise law in both jurisdictions. | 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. | Others have mentioned Title IX, the federal law that generally prohibits sex discrimination at federally funded educational institutions, 20 US 1681 et seq. However, there is specific permission for single-sex housing in 20 USC 1686: Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes. As to your "in this day and age", this particular section of the law has not been amended since it was first passed in 1972. If you think it should be, you can certainly write to your members of Congress and tell them so. However, you say you attend a "Christian" college. Religious schools get an even broader exemption from Title IX, as Michael Seifert also mentioned. 20 USC 1681 (a) (3): This section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization; So even if 20 USC 1686 were repealed, if your college determined that mixed-gender housing was "inconsistent with its religious tenets", they would probably be allowed to continue having single-gender housing anyway. | Edith Windsor paid $363053 in taxes that she thought she did not owe. She later challenged the constitutionality of the law that prevented its refund. United States v. Windsor, 570 U.S. ___ (2013) Abigail Fisher paid a $100 application fee to the University of Texas. She sued to get it back, challenging the constitutionality of the university's race-sensitive admissions process. Fisher v. University of Texas, 570 U.S. ___ (2013) In Federal courts, a case can only become moot if "in no event will the status of [the plaintiff] now be affected by any view this Court might express on the merits of this controversy." DeFunis v. Odegaard 416 U.S. 312 (1974) That isn't a sufficient condition, but it's a necessary condition. In the case of a fee that has been paid, the court can always order the fee refunded if the law didn't (or can't) actually require that it be paid. | Wave Broadband is a private company; they can probably decide to not provide service to an address that is in arrears or collections. I'm sure there is a clause in their service contract that states they can do that, and there would be local or state laws to support that. Whatever public service commission governs the state may also allow that. It's possible that Wave is breaking the law by denying service to a whole address, but doubtful. You can check with the state level public service commission. | You're under 18, so you're viewed as a minor under the law, and as such, you can't agree to and sign legally binding contracts. The TOS for the applications are agreed to by your parents by default, because your parents are responsible for you and have no choice in parental guardian-type duties, such as education. Agreeing to the software TOSs may also be done for all student users by the school with their software site license(s) and under an agreement with your parents; ask for and read any written policies the school has. And, you don't have a say in data handling at your school; that will be another school policy for data and network security, and hopefully a policy exists. If a policy exists, it will set by the school board and it will respect a variety of local, state and federal laws. That said, you can approach the school board and outline your concerns and ask to take tests and assignments with pencil and paper. But they are not obligated to change policies for you or make accommodations, other than established accommodations required by law, such as under the ADA act. Once you're 18, you can fight the power. Until then, you're a minor. | Public schools are on a shorter legal leash than private schools are, because they must behave like proper governments do and respect the constitutional rights of their charges. (First Amendment rights are much broader in public schools than they are in private schools). Assuming that we're in a public school, a search of your phone is governed by a watered-down version of the 4th Amendment. They may search your phone if they have a reasonable suspicion that there is evidence of a violation of the law or a school rule, but this is passive with respect to you providing information -- if the phone is on, they can snoop around if they have a reasonable suspicion. The 5th Amendment would be relevant to passcodes: they cannot compel you to give up your passcode. If there was plainly-visible evidence of wrongful activity on the phone which they saw, and then you shut the phone down, then analogous to in re Boucher the courts could order you to reveal your password, under the "foregone conclusion" doctrine. However, it's the courts and not the schools who get to make that determination. One way the school could literally force you, bypassing the legal system, would be to physically threaten you, by beating you or threatening you with a gun or whip. Such physical coersion would be a felony, and it is almost inconceivable that they would do that. What they might maybe do is give you a non-physical ultimatum, of the type "decrypt the phone / reveal the password or we will... expel you / fine you / fail you in your English class / not let you go to any more football games / turn the phone over to the police". The question is, what would be legal versus illegal by way of consequences? I know of no constitutional right to attend football games anywhere, so they might well be able to get away with that deprivation. You might have a contractual right to attend games at a private school. With a private school, there is some contractual agreement between the school and you (least likely, assuming you're a minor) or your parents~guardians (most likely). That contract could imply certain rights, such as attending games, and might spell out a procedure for them to terminate that right. If they don't follow the process, they could be in breach of contract. Apart from contractual rights (which probably involve your parents, not you, but also would be considerable, for example the right to attend and be graded fairly in the English class), you have no protected rights. As you can see, the answer has a lot of "it depends" in it. Suppose your public school had a reasonable suspcion that you had engaged in a criminal activity, and might prove that by looking at the phone – which you shut down. They cannot use physical force against you, but they can try to persuade you, by offering you something that you want which they can legally take away – like attending a football game. If they try to deprive you of something that you have a right to, you can sue them to prevent that. However, they can also seek a court order to compel you to reveal the password, and it is certainly not illegal to inform you that if you don't unlock the phone, they will seek a court order. Whether or not the courts will grant the request is not obvious (incidentally, if the device is fingerprint-protected, you are hosed, since forcing a person to prove fingerprints is not against the 5th). If the school can be very specific about having seen criminal evidence, they have a leg to stand on, otherwise you cannot be compelled to testify against yourself (coughing up a password is a form of testifying against yourself). |
Legal repercussions for an act of discrimination What are possible legal repercussions for someone who stands up in a restaurant and says something like "this n-r must leave the place where white people eat"? What laws apply here? | The only applicable law is the local trespassing law. If he wants, the proprietor can demand that the patron leave, and if the patron does not leave, he can be arrested for trespassing. It uncontroversial that the First Amendment protects racist declarations. | I think this is a lot like this question Liability for poisoning food one expects to be stolen because you are causing harm to someone/something when they are using your things without permission. That question says that if you expect someone to do something with something that you have purposely made wrong then you are legally responsible for the effects. | I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise. | There appears to be no general federal statute addressing the legality of a male entering a female-labeled bathroom, or vice versa, within federal jurisdiction. There are various regulations that touch on bathrooms, for example the OSHA regulations pertaining to sanitation require that "toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with table J-1 of this section", but "Where toilet facilities will not be used by women, urinals may be provided instead of water closets". These are regulations imposed on employers, and there is no provision for enforcement by employers, for instance no clause saying that the employer must call the police, or in any way intervene or sanction an employee, if a person enters a bathroom of "the wrong sex". It is apparently not a crime, as reflected anywhere in the US Code, for a male to enter or remain in a female bathroom, or vice versa. Building managers have some discretion regarding the operation of federal facilities, for example courthouses, which could extend to requesting a male to not enter a female bathroom or vice versa, but there isn't a practical way to determine what departmental regulations exist that would allow eviction of a bathroom-cross-user. Federal law does not protect against sex/gender discrimination in public accommodations. As for Maryland law, the owner of private property has the right to control his property up to the point that state law take that control from him, and therefore in principle he could call the police to remove a person trespassing in a bathroom (this article addresses the trespass angle in North Carolina). Maryland does not appear to have any case law or statutory exception to trespass laws related to labeling of bathrooms, so enforcement actions would be at the discretion of the owner. At the lower end of the political hierarchy, Baltimore has an ordinance requiring single-use bathrooms to be gender neutral, and a proposal exists to enact a state law with this effect. In other words, there does not appear to be any direct, enforceable legal requirement regarding bathroom entry and sex. Trespass laws could be used, but are at the discretion of the property owner (who might be civilly sued for his actions, but the police don't decide the merits of a discrimination suit before evicting a trespasser). | One option would be for an attorney to spend one of their peremptory challenges, which they could do as long as the juror is not a member of a racial minority (Batson v. Kentucky, 476 U.S. 79). Even then you can, you just have to give a valid reason other than race. Otherwise, the side wishing to strike for cause has to show that there is reasonable doubt that the prospective juror can be impartial (basing their decision just on the evidence presented and the law as explained by the court). Turning the accused / juror relation around, one might be able to strike for cause if the stripper was accused of some form of grave immorality and if the spinster was a leader of a radically puritanical religious sect that held that strippers must fry for said grave immorality crimes. The underlying assumption is that any prospective juror will be impartial, unless they say (or said, or have done) something that shows otherwise. | In placing an order (for anything, not just in a restaurant) and in the supplier accepting it then a legally binding verbal contract has been created. There are terms that come into being implicitly: some come from statute law and some from common law. For example, in most jurisdictions there will be either a common law or specific statute that requires the product to be of merchantable quality and fit for the purpose the customer explicitly or implicitly made known to the vendor. In a restaurant, this means that the food must be presented in a way that enables you to eat it and it must be fit for human consumption. It also means that, in the absence of a time for delivery being specified, that the meal must be delivered within a reasonable time. Reasonable has a specific legal meaning and is an objective test: what an ordinary, reasonable and prudent person would expect in the specific circumstances. It is clear that a reasonable time varies with the circumstances. Reasonable in McDonalds is different from reasonable in a 3 Michelin star restaurant and also different from the same McDonald's when it is obvious to the customer that they are currently insanely busy. If the supplier does not supply the goods and services within a reasonable time then they have breached a term of the contract. The customer has several options: repudiate the contract and sue for damages if this is a breach of a condition of the contract (a condition is a term that is fundamental to the contract; late delivery of food probably isn't a condition), repudiate the contract and sue for damages if this is a major breach of a term of the contract (late delivery probably is), sue for damages if this is an intermediate breach of a term or a breach of a warranty. Enough generalities, for your specific queries: What law in involved in restaurant orders? Contract law, consumer protection law, health and safety law, business law, food hygiene laws, tax laws etc. etc. If I go into a restaurant and order hundreds of dollars of food, then leave before it arrives, I would imagine there is some recourse that the proprietor could take. Sure, there is a contract, you breached it, the restaurant can sue for damages. In addition, they could make a complaint to the police that you have acted fraudulently by ordering food you never intended to pay for. However, if I order a single item and it doesn't show up for over an hour, despite me inquiring about it's status, would I be compelled to pay? It depends on if an hour is a reasonable time or not. By inquiring you have demonstrated that you don't believe that it is but you may not be "an ordinary, reasonable and prudent person". If the breach is actual and egregious enough then you probably have the right to repudiate the contract; that means the contract is at an end and neither of you have any further obligations under it including an obligation to pay. That said, you would be on surer ground if you attempted to renegotiate the contract to make time a condition. "Look, if the meal is not here in 15 minutes, I'm leaving"; if the restaurateur accepts this renegotiation by, for example, saying "I'm terribly sorry, we will sort it out" then your position is much clearer. | Anti-discrimination laws in the U.S. have exceptions for someone who rents a room in a landlord's own residence, but generally speaking, for other purposes, there is not a distinction in U.S. or Florida law. People who stay at a place with the permission of the owner for a very brief period of time and not pursuant to a lease, such as someone who gains use of a particular seat in a movie theater pursuant to a purchased ticket, is, however, not a tenant with the full rights of a tenant, and is instead a licensee who does not have a property right to use that space, only a contract that can be terminated by the property owner or their agent at will, potentially with breach of contract damages if this is done without justification, but not with liability for violating a tenant's rights. In some cases, someone whose housing, at least part of the time, is for the convenience of the employer, like a medical resident who uses a sleeping room at a hospital, or a member of the crew of a ship who sleeps on the ship incident to their duties, may have reduced rights relative to housing when their employment is terminated for cause, although this is only sometimes clearly enunciated in statutes or case law and the law would not be terribly consistent in this area. | LegalZoom did not get it wrong. The case Masterpiece Cakeshop v. Colorado Civil Rights Commission was under Colorado law (hence it was against the Colorado Civil Rights Commission), not federal law. LZ stated that 20 states have enacted laws against discrimination based on sexual orientation, and Colorado is one of those states. The issue was heard by SCOTUS because the plaintiff raised claims under the Free Speech and Free Exercise Clauses of the First Amendment, hence he could make a federal case of it. A prior case (Azucar Bakery) cited by LZ was about refusing to make a cake with anti-gay slogans, and was decided by the commission. Here is a brief filed by that plaintiff in that and two related cases, arguing a pattern of religious discrmination. LZ got it mildly wrong in saying "the court ruled that this was not discrimination because...", because the case did not go to court, it ended at the Colorado Civil Rights Commission. The second case appears to refer to Charge No. CP2018011310 a complaint filed against Masterpiece, where the same commission found probable cause for an anti-discrimination proceeding. In that proceeding, the Colorado Civil Rights Division finds that complainant Scardina "adequately shows that the Respondent's reason is pretext". This led to a complaint against the commission in US District Court (Civil Action No. 18-cv-02074-WYD-STV). There was a motion to dismiss which had partial success, but which was not about the substance of the case (it had to do with immunity, standing, abstention doctrines). The case was later dismissed, because the parties settled. So at no point did a court rule on the substance of the "pretext" issue – on this point, I think LZ overstated the significance of the commission's decision. |
Could I write a "Parry Hotter" novel? There is a question over at the Writing SE which was wondering whether J. K. Rowling would consent to somebody writing a Harry Potter sequel. The answer was, predictably in hindsight, "you would never be able to give her a letter, and even if, she wouldn't read it, and even if, she'd say no." As a second best solution, could I — without her permission — write a novel that is pretty transparently set in the Harry Potter universe but simply changes a few letters around in the characters' names, so we have Parry Hotter, Waldo Bumblefloor, Salome Ginger etc.? The backstories are all the same, the rooms in the Hoglard school are the same, there are funny chasing games on brooms in the courtyard, even the pictures on the wall move. For clarification, it would not be a satire but a serious book (well, as serious as any of JKR) that I try to earn money with. The story would be original though, just set essentially in the "same" universe. Are there established criteria how far removed from original content a novel must be from an author who has no contract with or permission from the original author? Perhaps one can draw a parallel to an "exposé novel" (one disclosing private details about living persons). In such a novel, things for which one would fear libel or slander charges if they were claimed about real persons are attributed to fictional characters who are transparent stand-ins for the real persons. Apparently authors get away with that. Similarly, we are by no means writing about the well-known character created by JKR, Harry Potter. No, no, no. We talk about Parry Hotter, certainly not the only wizard out there. "Mr Hilter." All similarities to invented characters are coincidental. I'm both interested in an answer concerning the U.S. as be biggest market and probably largest readership and potential authorship both of Law SE and Harry Potter, and the UK as the home country of JKR. | Using the setting and characters of an existing and current book would probably, indeed almost surely, make it a derivative work. Creating a derivative work from a work protected by copyright requires permission from the copyright holder, unless an exception to copyright applies. In US law 17 USC 101 defines a derivative work as: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. and 17 USC 106 provides in pertinent part that: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ... to prepare derivative works based upon the copyrighted work; This means that creating such a fanfic without permission would be copyright infringement, and Rowling could sue for damages. Fair use In the US the primary exception to copyright available is fair use. Whether a work is a fair use of another is always a case-by-case decision, and often a complex one. There have not been many published US cases on whether fanfiction is or may be fair use. This depends on the details, but from the description I do not think such a fanfic as the question describes would be likely to be held to be a case of fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? In general fanfiction has not fared very well under US copyright law. See this Wikipedia article. A recent Law Review article on this topic, one of the few available, is The Better Angels of Our Fanfiction: The Need for True and Logical Precedent, 33 Hastings Comm. & Ent. L.J. 159](https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol33/iss2/1) by Stacey M. Lantagne. [Footnotes in the original shown here in {braces}.] On pages 168-9 Lantagne wrote: Although fanfiction is a flourishing medium, there has been no true case evaluating it under a fair use analysis. For instance, Warner Bros. Entertainment Inc. v. RDR Books 575 F.Supp.2d 513 (SDNY 2008) involved a work created by a fan, but the work in question was an encyclopedic reference book about the original copyrighted material, not a piece of fiction spun off from the original copyrighted work in some way. The fan work's inconsistently transformative character swayed the court's fair use analysis{The court noted that at times the fan work lapsed into mere verbatim copying of the original copyrighted material, which detracted from its transformative nature}, and the fact that it used more of the original copyrighted work than was necessary.{The court found it telling that the fan work contained a great deal of verbatim copying of "highly aesthetic expression," which tipped this factor away from a finding of fair use} These two factors would necessarily dictate a different analysis when a work of fiction is involved as opposed to a reference work.{Warner Bros., 575 F. Supp. 2d at 544. The court found troubling the excessive copying of "distinctive original language from the Harry Potter works," using "Rowling's original expression," in the work's entries. Id. Presumably, much less direct copying of original language would happen in a work of fiction. A similar implication occurs when considering the "verbatim copying" of whole sentences from the Harry Potter books. Id. at 547. Works of fanfiction seldom copy verbatim language, focusing on characters, settings, and plots.} Lantagne next discussed mthe case of Salinger v. Colting, 607 F.3d 68, 70. That case dealt with a novel called 60 Years Later: Coming Through the Rye, whose protagonist, "Mr. C", is a 76-year-old Holden Caulfield, (the protagonist of the J.D. Salinger novel The Catcher in the Rye. Lantagne wrote: The defendant's novel embodies typical fanfiction activity: taking a recognizable character and re-imagining them at a different stage of life." The court determined that the work was not permissible fair use and enjoined its publication.{This case [on appeal] recently settled, with Colting agreeing not to publish the book in the United States or Canada until the copyright on The Catcher in the Rye expires, but being able to publish it in other international territories, as long as it was not marketed using reference to Salinger, The Catcher in the Rye, or the litigation between the parties.} First, the court concluded that 60 Years Later was not a parody because it "contain[ed] no reasonably discernible rejoinder or specific criticism of any character or theme of Catcher. Rather than commenting on Holden Caulfield as a character, the purpose of 60 Years Later was to "satisfy Holden's fans' passion" for his character. The insertion of J.D. Salinger as a character in 60 Years Later was possibly, the court conceded, a criticism and commentary of Salinger, but not of The Catcher in the Rye. While the court admitted that there was some transformative element in the Salinger character in 60 Years Later, it was limited by the character's minor role in a work that was largely not transformative. The court concluded that merely aging the main character of a novel and altering the novel's setting was not sufficient to make the use transformative. Finally, because 60 Years Later was to be sold for profit, the court found that the first factor weighed against a finding of fair use. After finding The Catcher in the Rye to be an expressive work, which weighed the second factor against a finding of fair use, the court then concluded that 60 Years Later took much more from The Catcher in the Rye than was necessary for whatever transformative commentary it was trying to make. The court disapproved mainly of the use of the main character of The Catcher in the Rye. 60 Years Later also was similar to The Catcher in the Rye in structure, in a way that was not necessary to offer a commentary on Salinger (the only transformative purpose the court had found the work to have). Finally, the court found that 60 Years Later harmed the potential market for any permissible The Catcher in the Rye sequels. The court found that fair use should not protect the ability to publish unauthorized sequels: [B]ecause some artists may be further incentivized to create original works due to the availability of the right not to produce any sequels. This might be the case if, for instance, an author's artistic vision includes leaving certain portions or aspects of his character's story to the varied imaginations of his readers, or if he hopes that his readers will engage in discussion and speculation as to what happened subsequently." Although 60 Years Later may be classified as fanfiction, the overtly commercial purpose of the work makes it an imperfect representation of the genre because most fanfiction is not-for-profit.{See Tushnet, supra note 16, at 664. A recent development in fanfiction that has led to clashes is the rise of the use of fanfiction for charitable purposes. "Fanfic auctions" in which readers bid for the services of fanfiction authors to write a story based on their specifications, with the proceeds to benefit charity, are becoming more common. See Gabaldon, supra note 7 ("Recently, a couple of people have drawn my attention to a person who's been posting on various boards about fund-raising for an uninsured friend named Stacie who has breast cancer. Her (the poster's) idea for fund-raising is to auction off a customer-written piece of fan-fic. . . ."). Fanfiction written for such a commercial purpose may change the analysis. But see Tushnet, supra note 16, at 672-73 (quoting Gene Rodenberry).} Because the court weighed the novel's commercial nature against a finding of fair use, Salinger is not an ideal fanfiction precedent Lantagne goes on to discuss the case of Suntrust Bank v. Houghton Mifflin Co 268 F.3d 1257, 1259 (11th Cir. 2001). In that case a novel The Wind Done Gone, retelling Gone With the Wind from the PoV of the black characters, was held to be a parody as well as a sequel, to be "highly transformative", and allowable as fair use. Sequels as Derivative Works A sequel uses the characters and/or setting of an existing work of fiction. It often constitutes a derivative work. The more distinctive and original the setting and characters are, and the more of those distinctive characteristics that are used in the sequel, the more likely the sequel is to be treated as a derivative work. On the matter of sequels, see the case of Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D. Cal. 1989). In that case, a Mr. Timothy Anderson prepared a sequel to the film Rocky III which he hoped would become Rocky IV. He presented it to MGM and Stallone. They eventually declined to buy it, and Anderson sued, claiming that the film Rocky IV that was made infringed his script. The district court held that Anderson's script was an infringing work not entitled to copyright protection. The court, citing Nichols v. Universal Pictures Corp.. 45 F.2d 119 (2d Cir. 1930), ruled that the characters in a copyrighted work are protected when they are "developed with enough specificity to constitute protect able expression." Holding that the Rocky III characters met this standard, the court ruled that the Anderson script was a derivative work created without permission, and thus was not entailed to any copyright protection at all. Anderson appealed, and the case was settled out of court while this appeal was in progress. Details of the settlement were not disclosed. An unauthorized sequel to Harry Potter would probably face the same rule and reach the same result as in the Anderson case.It would depend on how much of the "distinctive" nature of JKR's characters and settings were used in the fanfic sequel. The Ethical and Emotional Arguments against Fan Fiction In This comment on the question user "RedSonja" writes: I know this is Law and you are looking for legal answers. But what you are proposing is plagiarism by the back door. JKR went to a lot of trouble inventing her universe. Why should you be able to just plug in and milk someone else's cow? If you are that highly original, write your own universe. Leaving aside the point that if the source is acknowledged it cannot be plagiarism, although it may be copyright infringement, this is essentially an ethical argument that the law should be different than it currently is. Some authors make an essentially emotional argument, saying that their works or their characters are in effect "children of the mind" and that others should not touch them without permission, whatever the law may say. Some find such arguments persuasive or powerful.. I disagree with these arguments. Lantagne on pages 172-179 of the law review article linked above, responds to such arguments, writing [Some footnotes omitted, others in {braces}]: Fanfiction is frequently devalued as not being "real" writing. This is closely related to the aesthetic argument. Copyright only protects creative expression.{See Eldred v. Ashcroft, 537 U.S. 186, 219 (2002)} If the fanfiction is not creative expression, then it is not copyrightable. That, however, is a different question from whether it is infringing.{See Tushnet, supra note 16, at 681 ("Fan fiction may not be copyrightable, but that does not make it an infringing use....").} It could be that the "not real writing" argument, translated into legalese, really expresses the idea that the work of fanfiction is not transformative enough.{See Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (1994) ("If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger."). Importantly, however, a work does not have to be transformative to be protected under fair use. See id. at 579. The fair use test is not forgiving of shortcuts.} However, this alone does not automatically make the work a copyright infringement because other fair use factors remain. Many authors frequently describe fanfiction as being the equivalent of an affront against their relatives.{See Gabaldon, supra note 7 ("[L]et us just say that there's a difference between someone dating red-haired men, and the same someone trying to seduce my husband.... I wouldn't like people writing sex fantasies for public consumption about me or members of my family-why would I be all right with them doing it to the intimate creations of my imagination and personality?"); Someone Is Angry on the Internet, supra note 11 ("My characters are my children, I have been heard to say. I don't want people making off with them, thank you."); Hobb, supra note 7 (comparing fanfiction to PhotoShopping a family photo).} While the artistic protectiveness for one's creation is understandable, it is not a valid argument in U.S. copyright law. Artists have the right to control derivative works of their creations. If the fair use factors come out the wrong way [for the reuser], artists can prevent that use of their work. However, the purpose of copyright is not to prevent all use by others of an artistic work.{See, e.g., Campbell, 510 U.S. at 574-77 ("From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose ...)} It never has been. The very character of the fair use test illustrates this, as it protects most strongly those uses of an artist's creation that the artist would never permit.{See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1282-83 (11th Cir.2001) (Marcus, J., concurring) ("To the extent the Suntrust [sought to impose editorial restrictions] to preserve Gone With the Wind's reputation, or protect its story from 'taint,' however, it may not now invoke copyright to further that goal. Of course, Suntrust can choose to license its derivative however it wishes and insist that those derivatives remain free of content it deems disreputable. Suntrust may be vigilant of Gone With the Wind's public image-but it may not use copyright to shield Gone With the Wind from unwelcome comment, a policy that would extend intellectual property protection 'into the precincts of censorship,' in Pat Conroy's words.")} Arguably, the more that a fanfiction work criticizes or parodies the original work, the more that fanfiction is a fair use. Thus, the argument that fanfiction should not be permitted because it transforms the original authors' characters mirrors the argument for exactly why fanfiction should be permitted under copyright law. ... The arguments that authors advance when they argue against copyright belong in a regime without fair use-a regime that would ignore the central purpose of U.S. copyright."' Such a conclusion is not only potentially untenable under the Constitution, but is also undesirable."' "The public's interest in free expression . . . is significant."" There is no question that courts have, throughout the history of copyright law, sought to protect that public interest. However, there is also no question that courts are inevitably swayed by value arguments. This should not be the case, but such influence is inevitable. ' Furthermore, value is a chicken-and-egg argument: Campbell did not base its decision on the popularity of music sampling, but surely the popularity informed Campbell's understanding of the critical commentary value of "Pretty Woman." ... [T]he use of the word "fair" in "fair use" does not mean that it is fair to the author's wishes. Rather, it means that it is fair to the purposes of copyright. None of the emotional arguments frequently raised against fanfiction support a blanket proclamation that none of it is fair use. Truthfully, much of fanfiction may very well not be fair use. However, a true test case of fanfiction, logically evaluating each factor, would be invaluable in moving the fanfiction debate past the emotions of the participants. The argument should focus not on the emotions of the author or the quality of the writing, but on the fair use factors: on the purpose, character, and possible transformative nature of the work, on the amount of the original copyrighted work used, on the nature of the original copyrighted work, and on the effect on the market of the original copyrighted work. These are the factors that best protect the advancement of the twin goals of U.S. copyright. I agree with Lantagne here, it is often exactly those uses that a copyright owner will not want to approve that should be permitted as an exception to copyright. The limited statutory monopoly is granted in return for a contribution to the clutural fabric, and such work should therefore be available for use in further developing that fabric where it does not deprive the copyright holder of financial rewards, and where such uses in general are of public benefit. I take it thatr current US copyright law follows that goal, more or less. Non-US Law The rule on derivative works is also contained in the Berne Copyright Convention and the WTO's TRIPPS Agreement, and so applies in almost every country. Exceptions to copyright, however, vary widely. The concept of Fair Use is originally a purely US concept, although it has been adopted by Israel, and in part by a few other countries. Other countries generally have more specific and narrower exceptions, but often have several different exceptions. India has some 28 different exceptions in its copyright law. Few of these seem likely to be any more favorable to a fanfiction sequel than the US concept of fair use. | It is a fact that a particulate chess game was played on a particular date by certain specific players, who made specific moves. Facts are not protected by copyright. Anyone is free to report such a game, including the exact moves, and the names of the players. Such games are often used in books about chess, and the same thing is done in books about other games, such as bridge and go, where a record of the play is often kept. If someone else has described or analyzed such a game, you may not copy that person's wording without permission (except to the limited extent permitted by fair use or fair dealing). A chess diagram simply represents the position of the pieces in a standard way, and has no original content beyond those facts, and so is not protected by copyright either. If a person has invented a chess game or a series of chess moves that never took place to illustrate a point in analyzing chess, re-using that sequence of moves might make the new analysis a derivative work of the previous one, if the coverage of the invented sequence of moves is extensive. But that would not apply to the moves of an actual game that was actually played. There have even been cases of fictional stories based upon real historical chess games. For example "Unicorn Variation" by Roger Zelezney. 17 USC 102 says: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. This is the "fact/expression distinction" by which it is said that facts are not protected by copyright, although the form of expressing those facts often is. The same section has the list of kinds of protected works. This includes literary, dramatic, musical, and pictorial works, dance, audiovisual, sound and architectural works. A chess game does not fall into any of those categories. Thus it is ineligible form protection on two separate but related grounds. Beyond that, under the Feist vs Rural decision, a work must have an element of originality to be protected by copyright, and a list of the moves made by chess players has no original content, although an analysis of a game would. The copyright laws of many other countries have been interpreted similarly. As to the question of offense, in the US at least, and in most other countries, a true statement is never legally defamatory, even if the subject dislikes it. If it is true that Player X lost to Player Y on such and such a date, reporting that fact cannot be libel or any form of defamation. Otherwise the loser could never be named in any sports reporting. | The matter is not clear-cut (and the university lawyers are presumably relying on that fact). The bold part and following overstates the situation, especially the unconstrained "publishing anything" edict. You can publish whatever you want that the university doesn't have a legal interest in. The clause that says "If you have co-authors or co-researchers you must ask their permission before publishing, and include their names" is true, and defines a limit on their control. If you don't have co-authors, it's none of their legal business. (There can be issues regarding publishing an affiliation, so let's put that on hold). They can, however, prohibit you from claiming an affiliation with Pod U, unless you submit your works to some internal vetting organization. This requirement should, however, be stated somewhere perhaps in the rules of the graduate school (not just the student handbook); or the other legally-enforceable rules. You should also pay attention to the exact words that they use. You must ask permission to publish work done with a co-author (that's a fact: it's a standard requirement in universities). It is important to be sure that the information you publish is correct (clearly that is not in dispute). They are allowed to ask you to get X's approval. The First Amendment does not prohibit them from urging you to follow a course of action. | It should not surprise you that copyright protects the right to (among other things) make copies. There are limited exceptions that are considered "fair use", like if you reproduce a limited amount of text for educational, reporting, or review purposes. Giving your friend a copy of a large portion of the text just because they want it would almost certainly violate copyright. Whether the book is available or out-of-print has absolutely no bearing whatsoever on who holds the copyright or whether your actions violate it. This is very different from giving your friend the book itself. The book itself is covered under the "first sale doctrine", meaning that by buying a copy of the book, you buy the right to sell, transfer, or dispose of that particular copy, but it doesn't give you the right to make more copies. I will note that in practice, it is vanishingly unlikely that the copyright holder would ever learn of your isolated instance of limited infringement in the first place (especially since it's out of print), much less bring legal action against you for making a single copy that did not affect their bottom line. | The Apache 2.0 license purports to be irrevocable, but it also presupposes that the supposed licensor has the right to grant permission to copy. In this case, that is untrue, so there never was a proper license and nothing to revoke (the copyright owner grants permission in the form of "a license" which is a legal abstraction, that normally is specified in the license document). An end-user snared by this illegal license might attempt to sue the author because of the legal screw-up but paragraph 9 says that the supposed licensor cannot be held liable. In this case, though, "licensor" is defined not as the person who hands you the license document, but as the copyright owner. So it's the employer who would be not liable under the terms of the document (but since the employer had nothing to do with the license, it's as though the license never existed). The end-user is a secondary infringer (the employee is the primary infringer, in illegally distributing the material). Under US law, that doesn't matter, the user is still liable. Under UK law, secondary infringement includes the element that you have to have reason to know that the copy is infringing, which in the scenario that you describe is not the case. | There is no fixed amount or proportion of a copyrighted text which may be quoted without infringement. Whether quoting without permission is a fair use (which is what this question asks) depends on the totality of the circumstances, including the purpose of the use, the effect of the use on the market or potential market for the original, and the nature of the original work. In the Harper vs Nation case, quotes totaling roughly 300 words from the autobiography of former President George H. W. Bush (which was many hundreds of pages long) were held to be the "heart" of the work, and quoting them was found not to be fair use. There is no formula which can be rigidly or automatically applied to determine if a quote is a fair use. Note also that fair use is a strictly US legal concept, and a use which would be fair use under US law might well be copyright infringement under the laws of the EU, the UK, or other countries. | First, the seller has not violated copyright law by selling you this book. Kirtsaeng v. John Wiley & Sons, Inc. provides the precedent. The Supreme Court ruled that the First Sale doctrine applies to "grey market" imports of books, so buying a book cheaply in another country and then shipping it to the USA is entirely legal, regardless of what the publisher would like. The court wrote: Putting section numbers to the side, we ask whether the “first sale” doctrine applies to protect a buyer or other lawful owner of a copy (of a copyrighted work) lawfully manufactured abroad. Can that buyer bring that copy into the United States (and sell it or give it away) without obtaining permission to do so from the copyright owner? Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission? In our view, the answers to these questions are, yes. Wikipedia also has an article on the case. As for your recourse against the seller, this would seem to be very limited unless they specifically promised you the US edition, or the content is materially different between US and Indian editions. You don't say what kind of book this is. Textbooks typically have identical content. Fiction and other entertainment books generally have local idioms and terminology changed (e.g. "pavement" versus "sidewalk") but will otherwise be the same. You might be able to claim that this is a material difference, but its likely to be difficult. | This kind of quotation, for commentary, criticism, or reference, is generally allowed without obtaining permission. In the US, this falls under fair use (see 17 USC 107. In the UK and most commonwealth countries, it falls under fair dealing. In other countries there are various exceptions to copyright that will probably cover this. Even answers that do not directly quote the rule books often use information from those rulebooks to write an answer. Facts and ideas are never protected by copyright, so this is not going to be an issue. See 17 USC 102(b), which provides: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. As a comment by user Trish reminds, game rules are facts and are not protected, although their exact wording may be. |
Enforcement of foreign court orders in the USA Can non-US court orders against US entities be honored/enforced in the US? Say if I sue a Californian company in a New Zealand court (which happens to assume its jurisdiction) and win some monies, would that judgment be any practicable to enforce in California? | Usually, but not always. In California, this is governed primarily by the Uniform Foreign-Country Money Judgments Recognition Act. California Code of Civil Procedure §§ 1713-1724. The general rule is that the judgment of a foreign court in a country with a legitimate legal system (like New Zealand), that had jurisdiction over the parties and the subject-matter, is enforceable through a summary process that does not reconsider the merits of the foreign money judgment, if the person seeking to enforce the judgment can establish those facts. See § 1716(a)-(b). But there are many exceptions to the general rule. See §§ 1715(b) (taxes, fines, penalties, some domestic relations judgments), 1716(c) (seven grounds for procedural irregularities, a ground for public policy exceptions, and certain defamation judgments). Section 1717 of the Act provides for certain exceptions to the exceptions. There are also federal law exceptions in addition to those in the act, including one applicable to foreign defamation case judgments. But these laws rarely have much practical effects beyond the California statute in cases involving purely money judgments that are governed by the California statute. Injunctive and other non-monetary relief granted by a foreign court is less frequently enforceable, and when it is, is not governed by a simple, summary statutory process from this statute. Special rules apply, in particular, to foreign child custody judgments. The summary process, when there is no other pending case in California between the parties is as follows: "If recognition of a foreign-country judgment is sought as an original matter, the issue of recognition shall be raised by filing an action seeking recognition of the foreign-country judgment." § 1718(a). It is legally possible to file and prosecute a case like this one pro se in California, and it is unlikely that an in person hearing would be required in a case like this one. Usually, one could prevail in motion practice or with a remotely conducted hearing (especially in the COVID era). Whether an in person evidentiary hearing was required in a case like this would depend a great deal on the nature of the defense to recognition of the foreign judgment asserted. But, the better practice would be to hire a California lawyer to handle it for you. Typically, the cost of doing so would be the filing fee, the cost of serving the judgment debtor with process, and something on the order of $1000-$3000 in legal fees. So, it would be much less expensive than a full fledged new lawsuit, but would be too expensive to be practical in the case of a small claims sized judgment in most cases. | I'm not sure about USA law, it's probably similar to UK law. In the UK a trademark is registered for a particular business activity, and you can't just blanket register for "all" activities as that would be anti-competitive. I have a trademark "Dreamcraft" for dream interpretation and related activities. However, the name "Dreamcraft" is also a registered trademark for a company selling luxury yachts, and again for a company selling up-market craft materials. A website or organisation that is a gripe-site using the same name would not be in breach of any of these trademarks because it wouldn't be in direct competition with any of these companies. | 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. | The law in every country where your service is available prevails. That means that if your servers are in Estonia, your file storage is in Lithuania, your company is in Switzerland, you are in France, you hold Thai citizenship, your users are in the USA and the signal transits through the U.K., Belgium, Germany, Canada and Poland then you are subject to the laws of each and every one of them. In addition, if China has reason to believe that the stored files contain matters relating to their citizens then they can take an interest. And so on and so forth ... A country has jurisdiction wherever it wants to have jurisdiction subject to the limits of and its ability to actually enforce its laws. What you are proposing is certainly illegal in many countries and you need to seek professional legal advice - not rely on strangers on the internet. | When you are in another country, you are subject to their laws - you may be arrested and go through the due process as defined by that countries laws. This potentially means anything from a fine, to incarceration or deportation or even execution, depending on the local countries laws. A good example is the caning of American citizen Michael Fay in 1994 by the Singapore authorities, as a judicial punishment for vandalism, or the case of Swiss citizen Oliver Fricker, who was also caned in 2010 for vandalism. | Without regards to the actual case and the particular countries involved, I am wondering how it is even possible that a court in one country orders the whole another country to do something, let alone when the two countries do not even formally have diplomatic relations. The main statute that is relevant in the U.S. is the Foreign Sovereign Immunities Act (FISA) of 1976. In general foreign states are immune from liability in U.S. courts (and most courts of the developed world) subject to certain exceptions, the most common of which are as follows: Foreign state waives its immunity explicitly or implicitly Commercial activities by foreign state in or directly affecting the United States Property taken in violation of international law is at issue Rights in U.S. property acquired by succession or gift or rights in immovable property situated in the United States are at issue Money damages are sought against a foreign state for personal injury, death or damage to or loss of property caused by its tortious act or omission, occurring in the United States Enforcement of an arbitration agreement made by the foreign state with or for a private party Money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking or their support, if the foreign state is a designated sponsor of terrorism Admiralty lawsuit to enforce a maritime lien against a vessel or cargo of the foreign state, based on commercial activity The exception above in bold was probably the one applied in the North Korean case. The only countries to which that exception applies are North Korea, Syria, Sudan and Iran. (There are also separate similar rules related to countries with whom the U.S. is in a declared war.) There is sporadic ongoing constitutional separation of powers litigation in the U.S. over whether a FISA authorized lawsuit can proceed over the objections of the President as expressed by the U.S. State Department. The argument that FISA is unconstitutional in this context is that diplomacy and foreign policy is exclusively an executive branch power to the exclusion of Congress and the judiciary, but for the most part, this extreme position has been rejected in recent years. A conservative U.S. Supreme Court, however, could revisit this question (conservative judges tend to favor more absolute executive branch authority in foreign affairs). Once a party wins, however, the winner needs to identify foreign assets subject to the jurisdiction of the court from which to collect the judgment, such as gold deposits or U.S. governmental or corporate bonds or ships docked in U.S. ports, owned by the country. In strong contrast to the case above, the UK media recently overtly demonstrated disobedience of a New Zealand court name suppression order: a man arrested in NZ for allegedly committing an appalling crime was granted temporary name suppression, and that was ignored by the UK media. I am wondering if there is anything that would stop a New Zealand court to hold the UK to account just like the US court just did North Korea. In the New Zealand case, the remedy would be to bring suit against the particular newspapers or reporters involved, rather than the state. But, the U.K. might not enforce those judgments if those defendants lost, so enforcement might be limited to New Zealand based assets and persons, and then, only if the New Zealand court found that it had jurisdiction over the defendants under New Zealand law. So, this isn't really analogous. So, in general, are there any internationally recognised laws/treaties/protocols etc. that define if/when a court in one country can assert jurisdiction over the whole another country and hold it to account? Or is that completely up to the court and whatever extremes it dares to come up with? See above in the U.S. case. Most countries have similar statutes or case law to FISA which codified the case law applying customary international law at the time that it was adopted. One example that comes into my mind is the European Court of Human Rights: if a country signed the European Convention on Human Rights, it can be held to account by the court. But what conventions, if any, can be applied to the two cases above? The European Court of Human Rights case is one of consent to the jurisdiction of an international body by treaty. Countries like the UK and NZ have statutes or treaties governing when a foreign judgment (e.g. a judgment from a New Zealand court) will be recognized domestically. There are also usually laws governing when people present in one state will be extradited to another, usually in the form of a bilateral treaty between the affected states. | Is it actually necessary for businesses (such as a Small Town News USA Inc) that do not reside in EU to care about GDPR? Only if they offer goods/services to or monitor behavior of people in the EU (Art. 3(2)). Note that: having a commerce-oriented website that is accessible to EU residents does not by itself constitute offering goods or services in the EU. Rather, a business must show intent to draw EU customers, for example, by using a local language or currency. If it is then how (and by whom) would compliance be audited and/or enforced? Supervisory Authorities will care of it. | 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. |
In British Columbia can an employer punish employees for sharing wage/salary information with colleagues? While sharing salary information is often discouraged by employers, in the province of British Columbia, Canada, are employers legally allowed to punish (e.g. fire, reprimand, etc.) an employee who shares wage/salary information with their colleagues? Is there legislation that prevents this and would that legislation overrule any potentially conflicting clauses in an employment contract? Note that a very similar question was asked previously regarding laws in Canada. However, most employment is regulated provincially and, at the time of writing, the only answer to that question relies on a law from a different province (Ontario) and so is not relevant in BC. For the purpose of this question, you are welcome to assume that the employer/employee is not in a federally regulated industry (i.e. that they are in a provincially regulated industry). | are employers legally allowed to punish (e.g. fire, reprimand, etc.) an employee who shares wage/salary information with their colleagues? No. Section 8 of the BC Labour Relations Code preserves for the employee "the freedom to communicate to an employee a statement of fact [...] with respect to the employer's business". More conclusively, section 64 entitles a person to disclose --except for purposes of picketing-- "information [...] relating to terms or conditions of employment or work done or to be done by that person". Wage/salary information clearly is a condition of employment. the only answer to that question relies on a law from a different province (Ontario) and so is not relevant in BC. That answer is relevant to Canada (also the question was about Canada). That answer cites a statute from Ontario because that is the jurisdiction that the asker specified. It would be tiresome as well as futile to provide the statutory equivalent of every province on a matter that the provinces are very unlikely to legislate materially differently. | The Company is performing wage theft I have never heard of a wage method that pays a salary according to hours but doens't pay for hours over 40. Monthly Salary, by definition, is paid regardless of hours. Your contract doesn't give hours, it just gives a monthly total. That's a contract, and you should be paid according to the contract. In terms of fairness, it certainly isn't right to dock pay for weeks you worked less than 40 but not give you credit for weeks you wored more than 40. Now, it's not clear if you moved to direct employment for the second month. If you did, the first month would be a contract violation, and the second would be a violation of wage & labor law. A company can't pay you salary as an exempt (exempt from hourly wage laws, like management) employee and also dock you pay according to hours worked. So what can you do? If you are still a contractor and actually want the job, not much more than arguing with payroll. Since you (why?) decided to be a contractor instead of a direct hire, you have exactly zero protections to getting let go. If you are a direct employee, you have protections from bringing action about being paid fairly, though your long-term prospects there would be problematic if you have to take the company to task using the government. Any HR rep should know all of the above. But never just go to HR without talking to your manager first. Remember that HR works for management, and working against your manager is generally a bad career move. | In the U.S. severance payments are not provided for statutorily, and are rarely made when an employee quits or is fired for cause. However, even when not provided for within contracts it is common to see voluntary severances paid during lay-offs. Furthermore, in the U.S. it is more likely that they would be "laid off" in order to qualify for unemployment insurance. In Pennsylvania one can make claims on the state-run unemployment insurance system only if one is able to work and does not refuse suitable work when offered. If one quits one is not eligible for these payments. Ultimately unemployment claims are born by the employer (since their legally-mandated unemployment insurance premiums are adjusted based on realized claims). So managers with the authority to layoff employees can impose real costs on their companies, both in terms of direct severance payments (which may be optional), and in terms of the inflated unemployment premiums that will hit the company down the road. However, I have never heard of a company attempting to recoup such costs from managers, since such decisions are specifically delegated to managers with hiring/firing authority. It seems much more likely that a manager deemed to have abused the company's purse would be demoted or fired rather than being sued, unless there were some gross fraud involved (e.g., kickbacks). | One can be fired at any moment that the employer chooses, unless there is a contract that provides otherwise. (Some employment contracts specify a notice period.) But if the firing is at the end of a shift or of a work day, that shift's/day's wages would be included in the amount owing to the employee. "Fired" usually refers to ending employment for misconduct or failure to perform, or at least for an individual reason. "Laid off" usually means that the employer does not have enough work, but does not imply any failing by the employee, and may imply an intention to re-hire the employee if business improves. The difference may matter when making an unemployment claim, and when applying for a new job. But in both cases the job has ended. | I will assume B.C. as your specific jurisdiction: there could be provincial differences. As phoog says, you certainly may mention this problem to management, who have an interest in keeping you happy. No law against that. As for the "legality" of sexual harassment, the CBA BC branch says that "Sexual harassment, which is discrimination based on sex, is illegal under the BC Human Rights Code". It is interesting to see what the code actually says. Section 8 Discrimination in accommodation, service and facility says (1) A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons. The question is whether using the term "babe" constitutes discrimination against a person regarding service because of sex. This article on the Law Society of BC web site specifically identifies "verbal harassment" as an instance: Verbal harassment – This comes from anyone within the firm and or other workplace or a person who does business with the firm or company. Some examples are: referring to an adult as a babe, honey, girl or stud; whistling at someone; turning work discussion to sexual topics; asking personal questions of a sexual nature; making sexual comments about a person’s clothing, anatomy or looks; or asking someone repeatedly for dates and refusing to take no for an answer. (emphasis added). In case you're thinking that maybe there's a difference in what the code says regarding services and what it says regarding employment, section 13 Discrimination in Employment says: (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. In other words, it is defined simply in terms of "discrimination", which means "making a distinction". It is known that unwanted sexual advances constitute illegal discrimination, see Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252. The court found that Sexual harassment is a form of sex discrimination. Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims of the harassment. They did not, however, find that this is the only form of sexual discrimination (obviously, since it isn't). I can't point to case law indicating whether gender-biased expression are actionable, but that would be consistent with the letter of the law and "babe" is indeed an example cited in the Law Society article. | The page you link is a good summary. It describes the employer obligations under the Ontario Employment Standards Act. Eating periods are described at section 20: 20 (1) An employer shall give an employee an eating period of at least 30 minutes at intervals that will result in the employee working no more than five consecutive hours without an eating period. Exception (2) Subsection (1) does not apply if the employer and the employee agree, whether or not in writing, that the employee is to be given two eating periods that together total at least 30 minutes in each consecutive five-hour period. This section has been applied several times by the Ontario Labour Relations Board and appears to have been given its plain meaning. There are two ways that the Act lets an employer provide those breaks: Provide full 30-minute eating period(s) so that the employee works no more than five consecutive hours without an eating period. By agreement, provide two eating periods that total 30 minutes, "in each consecutive five-hour period" If proceeding by option two, the 30 minutes of eating period have to occur "in each consecutive five-hour period." The Ontario Labour Relations Board has described these two options and has said that option two requires the breaks to be "within" each consecutive five-hour period. See Rusty's at Blue Inc. / M & S Accounting v Erica Solmes, 2022 CanLII 56373 (paragraph 125, emphasis in original): Section 20 requires an employer to give an employee an eating period of 30 minutes after no more than five consecutive hours of work, or (with the agreement of the employee) two eating periods totalling 30 minutes within each consecutive five-hour period. Whether an employee is entitled to a single 30-minute eating period or to two eating periods totalling 30 minutes, the eating periods must be uninterrupted. The other answer and the page you link also describes an "exceptional circumstances" exception, but that is describing section 19 of the Act. Those exceptional circumstances can only let an employer get around the requirements of sections 17 and 18. Those are not relevant to the eating-period requirements. An employer may require an employee to work more than the maximum number of hours permitted under section 17 or to work during a period that is required to be free from performing work under section 18 only as follows | Virginia employer terminated employee and wants signing bonus returned Can the employer legally keep his last check and send the employee a bill for the remainder ? No, unless (1) the employee resigned and (2) his resignation does not amount to constructive termination. The employer may withhold the remaining $7,000 only if the employee did not meet the condition of "30 days of employment with xxxxx". Absent any language to the contrary, the requirement of "1-year commitment" is to be construed as the consideration expected from the employee (namely, "not to quit") in exchange for the bonus. Termination by the employer is self-defeating in the sense the employer himself made it impossible for the employee to fulfill the consideration that was expected from the employee. Therefore, the employer forfeits his entitlement to reimbursement. In the event that the employee met the condition of "30 days of employment with xxxxx", he would be entitled to the remaining $7,000 as well. Virginia labor law has no provision for treble damages (this is in response to one of the comments, per the OP's suggestion). The statutory provisions are only a civil penalty no greater than $1,000 for each violation, a portion of attorney's fees, and "all wages due, plus interest at an annual rate of eight percent". See Code of Virginia at § 40.1-29 A.2, F, and G. Item E of that statute determines which violations are misdemeanors and which are felonies. This statute would be applicable only if (1) the employer disavows the employee's entitlement to the remaining $7,000, and/or (2) the employer withholds a portion of the employee's earned compensation in an attempt to recover the initial payment of $3,000. | Can an employer be required to provide an escort from office to vehicle? No, at least, not on the theory articulated in the question. I can imagine some circumstances where it is conceivable that there might be a duty arising from some other source, like an OSHA regulation applied to a firing range business, or an express contract with the employee (some employers provide an escort as a matter of right in the evenings or at other high risk times, as an employee benefit, especially college and university employers, in part, because they have worker's compensation liability while an employee is still on a large campus, in part because it helps attract employees who may feel vulnerable, and in part because of an attitude that the employer wants its employees to be safe at dangerous times of day and this shows that the employer cares about them), or a court injunction related to a labor-management dispute where the employee is a scab. There is no such employer duty, but an employer does have strict liability in almost every case (there are some minor exceptions for very small employers and criminal conduct by an employee who is injured when the criminal conduct is clearly outside the scope of duty of the employee) for injuries and death in the course of employment from any cause whatsoever pretty much (including criminal actions of third-parties) which is generally fully insured by worker's compensation insurance. The exact details of when someone ceases to be at work for worker's compensation/employer liability is buried in case law and regulations (for overtime and minimum wage purposes, the standard is "portal to portal" but workers compensation/employer liability need not be identical, although once you are clearly no longer on the employer's premises and commuting after a day's work is done or before a day's work starts, you are clearly not covered). But, any place where there is employer liability at all, it would be worker's compensation covered. Usually, if the employer is required to have worker's compensation but doesn't, the employer likewise has strict liability for the same harms, but the damages that may be awarded are not limited to those that worker's compensation policies would cover. This leaves the employee with at risk travel between the office and the vehicle. It seems reasonable as well that as the employer prohibits the employees self defence, they would be responsible for the employees defence between office and some safe location (i.e. vehicle). This theory pretty much always loses. An employee walking in an ordinary, non-wartime environment without a firearm is not "at risk" in a meaningful sense, any more than someone who didn't choose to carry a firearm who goes about their daily life (or is prohibited from carrying one due to past conduct such as a felony or a domestic violence protection order or a domestic violence misdemeanor or a condition of parole, probation or bond pending criminal charges). Also, the employee is not being prohibited from engaging in any kind of self-defense or protective action whatsoever (or from asserting self-defense rights if a firearm is carried contrary to an employer rule) just from carrying a firearm at that particular moment (on pain of losing a job, not forfeiting a legal affirmative defense under criminal statutes), which is one of many means by which a person can protect themselves from crimes. |
Difference between lotteries and events that involve randomness? A common marketing strategy is a 'Free giveaway', where 'one lucky person will be selected from (some group) to receive a free (thing)'. I was read that such arrangements can be deemed illegal lotteries. Yet, contradictorily, I also see major websites doing this. For example on Twitch, when a subscription is 'gifted' to the community, a community member (a user who has ever, at no cost, watched or interacted with the streamer’s streams) is selected (somewhat randomly) to receive it. How does the law look differently upon a website that gives away something randomly as opposed to a software process (like Twitch's) that randomly selects someone to give a reward to? To me, (layperson) the two seem very similar, however, there must be some legal difference? | You are confusing a lottery with a sweepstakes The fundamental difference is that to enter a lottery you have to provide something of value (cash, a product purchase etc.) to receive a ticket. In a sweepstakes, tickets are free to anyone that asks in the right way. While both are games of chance, a sweepstakes is not gambling because the participants did not wager anything of value. If you read the terms and conditions of a sweepstakes very carefully, you will find there is a way of getting tickets without having to provide consideration. Getting them is often laborious and time consuming but so long as they exist, you have a sweepstake not a lottery. | Because the company that runs the contest is not in the banking or medical industry, or in another business or organization (NGO or governmental) that has to protect personal information by law, your login, email and password can be stored on pieces of paper scattered around their office and it's not illegal. And there are no laws regarding sending your information in plain text in an email. Yes, those are bad security and privacy policies, but they are not illegal. (This may vary by jurisdiction). The TOS (Terms of Serivice) you agreed to are at Eye Win Awards Privacy Policy. Part of it reads: By providing us your Information or by making use of the facilities provided by the Website, You hereby consent to the collection, storage, processing and transfer of any or all of Your Personal Information and Non-Personal Information by us as specified under this Privacy Policy. You further agree that such collection, use, storage and transfer of Your Information shall not cause any loss or wrongful gain to you or any other person. and We cannot guarantee the security of our database, nor can we guarantee that information you supply will not be intercepted while being transmitted to us over the Internet. And, of course, any information you include in a posting to the discussion areas is available to anyone with Internet access. You agree to the TOS and Privacy Policy simply by registering and using the site. This is known as a click wrap (Wikipedia) contract. You can choose to stop using the service, or by the company can choose to void the contract and close your account. You can complain, but it is entirely up to the company to address your complaint or even reply to you. The Grievance Redressal contact in India is at the bottom of the link above. There are probably consumer advocacy groups in India; Google will show you those. | You present ordinary fact testimony regarding how the winner was actually selected and then you hire an expert witness to conclude that this process is sufficiently close to random for the purposes for which it is being used. In some cases of "safe harbor" random selection methods like rolling dice, drawing cards, drawing lots, pulling the short straw, flipping a coin, activating a random number generator, pulling a slip out of a hat, etc., you could dispense with the expert testimony because there is case law already establishing that the method in question counts as a random method of selection. | I am not aware of any law making this illegal. You need to avoid any "bait and switch" tactics, though, like initially offering cola for $1 and then not actually letting them buy it for that price. | ...due to the international registration of multiple domains to generate ad revenue by recycling stories across sock puppet networks, giving the impression of multiple, independent companies. None of that is illegal on its face. Internet domains are freely registerable by anyone, anywhere (with the exception of some laws in some nations that restrict such Internet-related activity), and registered privately or publicly, and websites can be hosted anywhere. Writing articles and "spinning" and copying articles (even if that writing is sales gibberish in broken English) among the same copyright owner is legal, and using the same design and layout for a network of sites is legal. The formation of multiple, related companies and shell companies to give the impression that companies are separate and independent is legal (again, with the exception of some business and corporate laws in some nations that restrict such activity). These are all common business practices. Some business practices may appear to be unethical - trying to fool customers in order to make money and get clicks and sell ads. And what you may be feeling is that such activity is unethical. And that's OK. But feeling that they are unethical doesn't make the practices illegal. Many common activities that are considered to be unethical are illegal; but not all. Buyer beware. One way some of that activity may be illegal is if those articles are factually incorrect and promote quack medical treatments, are financial scams requiring payments, are gambling sites or promote other clearly illegal things. But then you get into the complexity of exactly how they are illegal, which jurisdictions are involved, and on and on. | Yes such a username would be personal data. It is information that relates to an identifiable person. In this context,a person isn't identifiable only if you can infer their real-world identity, but already if you can single out one person's records. Thus, your random IDs and any linked information would be personal data as well. Just because something is personal data doesn't mean that processing it is illegal. It just means you need a legal basis. That could be necessity for performing a contract with the data subject (like saving game progress), a legitimate interest, or consent. Taking into account GDPR principles like "data protection by design and by default", it could be sensible to hide a players stats from the leaderboard until they give consent. On the other hand, you may have a legitimate interest to provide leaderboard data for ranking/comparison, especially if the leaderboard entries are pseudonymized. In any case, it should be clear to the users which information is visible to others. | The gambling policy to which the question links says that "gambling" under that policy includes: games of skill that offer prizes of cash or other value. From the description in the question, this exactly fits the app in question, so it ought to be rejected under the policy unless it comp[lies with the rules for an exception, which the question doesn't say it does. | You don't have to pay anything to participate. The picks offered as part of Streak for the Cash are not statistically 50/50. There are often picks with vegas lines that correspond to 60-70% for one of the sides. The test for whether something is a game of chance is not simply checking whether the options are 50/50. |
Create a company to manage my personal domain name I own a domain name that has the format last-name.com, that is used primarily for personalised email addresses for my family. At the moment, I am the legal owner of the domain name and the subscription to the email service is in my name. The problem: if I were to get hit by a bus tomorrow, the other members of my family would most likely not be able to get access to my accounts and would lose their email service and potentially the domain name. The question: I was thinking of creating a company where every member of my family would be a shareholder, transfer the domain name to that company, and bill every shareholder monthly/annually for their share of the costs of running the email service. The company in question would not have as an objective to generate profit, it would just serve as a legal guarantee that my family would retain ownership of the domain name in the case I was hit by a bus. Is it legal to create and use a company in the way described above ? Is this the most simple solution from the legal point of view ? Jurisdiction: UK/EU | You seem to have a fundamental (though not uncommon) misunderstanding of how companies and shares work. A company has its own finances. When a company purchases something it doesn't have a whip-round from its shareholders- it uses company money. You certainly could create a company to manage the domain name and charge the family to use it, along with all the paperwork and costs that entails. The company would pay for the domain name. This would accomplish absolutely nothing. In the bus scenario the company would be passed according to your will (or to your next of kin) and you would have the same problem. If nobody knows the password, nobody can access it. | There is no law pertaining to top level domains, defining "appropriateness". Instead, some organization is an administrator, and there is an understanding as to what the purpose of the domain is, but this is not legally enforceable. The TLDs com, org, net are open to anyone, whereas edu is limited in the US to accredited post-secondary institutions, however some non-educational commercial enterprises were grandfathered in. Insofar as registering a com-domain website does not entail "an intent to make profit" and registering an org-domain website does not entail "an intent to not make a profit", there is no deception w.r.t. internet users. One would of course have to be truthful in registering the domain. Public Interest Registry, the administrator for org, does not even purport that businesses registered under org should be "nonprofit". | Businesses do hold customers' email addresses. These are routinely stored and communicated between the businesses' internal IT systems. There is nothing illegal about this. The only difference that internal email communication makes to the above is that not just machines but employees see the customers' email addresses. So, essentially the question is: is it legal for a business to show its customers' email addresses to its employees? As per Australian Privacy Principles, personal information needs to be kept secure. Businesses therefore have duty to do their best not to leak customers' personal information (which includes email addresses). Limiting the circle of people who see personal information only to those who need to see it is essential to perform this duty. So, essentially, the answer depends on whether all those people CC'ed actually needed to see the email addresses for business purposes. If, for example, one of those people was your office cleaner, then you have done bad job in performing your duty to secure personal information. Should that cleaner leak the email addresses outside the business, you will be held liable. | The domain you mention has godaddy as its registrar, but the registrant (I.e. 'owner') is 'Jackson National Life Ins Co' according to godaddy's own whois server. To answer your question: a person or other entity can register as many domains as it likes. Absent a trademark or other name-related dispute, you have no grounds to dispute a registered domain simply because you think it's being 'hoarded'. | That GDPR Disclaimer is no protection in some jurisdictions: the applicable laws to that situation in germany for example don't care about the GDPR: Cold calling, mailing, or e-mailing private people to advertise services all is handled by the same law: Without the consent it is expressly illegal under §7 of the law against unfair competition (Gesetz gegen unlauteren Wettbewerb UWG) and such cases are rather Slam-Dunk if the origin can be made out. The punishment can be a 300.000 € fine. The fact that to email someone you need their e-mail address and that e-mail addresses and private addresses are by default considered personally identifiable information is making it worse for the advertizer: Without either an exception (there is none available to cold-emailing) or special allowance of the person the data belongs to, you violate §4 of the federal data protection law (Bundesdatenschutzgesetzes BDSG) just by handling their e-mail address. That's a separate crime from the UWG one, adding up to another 300.000 € fine under §43 BDSG - or even up to 2 years in prison under §44 BDSG! Oh, and if the email does not contain a proper sender's address, that's another chance for a huge fine under the UWG... So, GDPR is your least trouble, if you violate the marketing laws of a country, or their own data privacy laws. A disclaimer means nothing as the act of sending the mail, even to an unintended addressee, is what is illegal and the law as written does not give a damn about 'I didn't want to advertise to that person' when in fact you sent them unwanted advertisements. Oh, and the very repository you suggest? It would violate the very same §4 BDSG and be illegal for processing private data if it was not actively asked to do that by the end user. As a result, that database is useless: It does kick back all people not in its database. Its database is incomplete because only few people give their address to that database as people not aware of the database never add their data on their own. So it regularly violates §4 BDSG with every German citizen's e-mail address it gets and kicks back, and claiming those addresses would be OK, it throws the company trying to check the database under the bus because they rely on data that is impossible to be reliable. tl;dr Don't do cold-(e)-mail marketing. You throw yourself into boiling oil with a lit torch in hand. further reading Other laws banning such behavior I had listed here, and I quote myself: The US has the CAN-SPAM-Act, which illegalizes sending unsocialised advertisements. You may NOT send a mail if any of the following is true: it has no opt-out the email was gained by 'harvesting' contains a header not matching the text contains less than one sentence the adressee does not have any relation to you In fact, you are liable for a 5-digit fine per infringing e-mail in the US. The FTC itself suggests to never buy e-mail lists - as E-mail harvesting or generating any possible e-mail adress itself is illegal. | The question of whether a person was acting on their own behalf or that of a company would generally be a question of fact, so if such a case came to court it would be for both sides to present evidence and argue for their interpretation of it. In most cases the context makes it clear. You mention having a company email domain and associated email signature; that is certainly good practice and would go a long way towards creating a presumption that you were acting for a company. Also signing yourself with your job title or role (e.g. "Joe Bloggs, Chief Bottlewasher") makes it clear that you are speaking in your role as an employee. The content of the communication also matters; if you use your company email address to order goods from a supplier that the company has used before then the recipient can reasonably assume that you are ordering on behalf of the company and a court is likely to agree. OTOH if you use the company address to send libellous emails then the recipient would have a much higher bar to claim that this was the company view rather than a personal one. | IP addresses are personal data. That means you need a legal basis to process them, but not necessarily consent from the user. That IP addresses should be treated as personal data in most contexts is clear, regardless of whether you can associate the IP address with a user ID. That you make such an association affirms that both the IP address and user ID are personal data in your context though. As the answers in the questions you linked indicate, there are alternative legal bases to consent. The GDPR offers a choice of six legal bases (Art 6(1) lit a–f). In most cases, you would instead rely on a “legitimate interest” for logging. But it's not enough to claim that you have a legitimate interest. You must have a clear purpose for which such logs would be necessary, and you would then have to weigh this legitimate interest against the interests, rights, and freedoms of the affected data subjects. If such logs are necessary for security and anti-abuse purposes, your legitimate interest test is likely to prevail. However, you must limit retention of the logged data and the included information to what is actually necessary. For example, keeping user IDs in there might not be necessary. If the association of IP addresses and user IDs is not necessary for a legitimate interest, then you would indeed need consent. Discussion on why IP addresses are personal data. You see many answers and opinions that IP addresses might not be personal data. Some of these are technically correct, but most are misinformed or outdated. I know only a single well-informed person that still disagrees. For everyone else such as the EU Commission, IP addresses are clearly personal data. Under the GDPR, personal data is any information that relates to an (indirectly) identifiable natural person. In the context of log files we can assume that the entries usually “relate” to a person, namely the person making the request. The exception would be requests triggered by automated systems. The more interesting question is whether the person to which the log entry relates is identifiable. While the GDPR does provide further guidance on the concept of identification in Recital 26, it does not provide clear unambiguous criteria. Thus, there is lots of debate about what that precisely means. One approach is to sidestep that debate and and notice that the GDPR's definition of personal data explicitly notes that a person might be identified “in particular by reference to an identifier such as a name, an identification number, location data, an online identifier” (Art 4(1)). Another but otherwise unrelated part of the GDPR mentions “internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags” as examples of online identifiers (Recital 30). We can also look more deeply into Recital 26 and see that “singling out” already counts as identification. We can use the IP address to single out one person's log entries from the set of log entries, so this could be interpreted as meaning that any stable user ID renders the data personal data – and an IP address is sufficiently stable in this context. Another part of Recital 26 says that we must consider “all the means reasonably likely to be used” for identification, even if this involves additional information from third parties. This phrasing is virtually identical to the GDPR's predecessor, the EU Data Protection Directive. On the basis of that DPD, the EU's top court (ECJ/CJEU) was asked to rule on the question whether dynamic IP addresses are personal data (the Breyer case, C‑582/14, judgement from 2016-10-19). It said yes. “It did not say yes”, some people will object. And they are technically correct. When someone rents an internet connection from an ISP, the ISP will have logs that connect the user's real-world identity to the IP address they were assigned at a time. You don't have access to the ISP's logs. But, if that user violated your rights (e.g. a cyberattack or copyright infringement), then you could (depending on civil vs criminal matters) report this to the appropriate authorities or to petition the court and they would have the right to order the ISP to disclose this information. The CJEU said that if this chain (you → authorities → ISP → user identity) is grounded in law, then the IP address would be identifiable. But whether there are suitable laws to compel the ISP to disclose this data would be up to national laws, and the CJEU doesn't concern itself with that. Spoiler: such laws are pretty common. To summarize typical objections: The IP address doesn't relate to a person: Can be a valid objection, but is not typically the case for user-facing web services. The Recital 30 argument is not valid because it's about profiling, not identification, and it only says that IP addresses may be used for profiling, not that they are always identifying: Technically correct, but I think that Recital 30 merely expresses the implied understanding that of course an IP address is an online identifier and permits identification by itself. “Singling out” does not apply because SOME_REASON: Indeed, this is an ill-defined term with no case law to guide us. However, regulators such as the EDPB and their predecessor WP29 routinely use “singling out” to mean being able to distinguish one person's data from other people's data. An IP address lets us do that. The Breyer judgement is not applicable because the defendant in that case was the German state, and the state has other legal means than ordinary website operators: Nothing in that case was specific to the website operator being a state or other authority. If the website operator can contact the appropriate authority and if they have the right to order the ISP to disclose the relevant data, then the IP address is identifiable. The CJEU didn't say “yes” in Breyer, it said “if”. So I'll take that as a “no”: The CJEU concerns itself with the interpretation of EU law, not with national laws. Specifically in the Breyer case, lower courts confirmed that German law has the necessary means. In other EU member states, further checks would be necessary but it would surprise me if there wouldn't be equivalent subpoena powers. If the ISP doesn't have the data, then the IP addresses are anonymous: Indeed, the CJEU scenario collapses if there is no additional data to be linked with the IP address. However: The CJEU used this scenario as an example to show that IP addresses can be identifiable. If that particular scenario fails, there could be other scenarios that still allow identification. The question of whether IP addresses are identifiable had of course been the subject of wider debate at the time. That the GDPR explicitly mentions IP addresses can be seen as a reaction to this debate. Thus, in a sense, the Breyer case is moot. It is still useful as an explanation of how broad “reasonably likely means” must be interpreted. | 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. |
Is it necessary to explicitly disclaim warranties on "private" sales? When people in Germany and Austria sell their own second-hand goods (used clothing, toys, bicycles, etc.) via online classified ads or auctions, they almost always include a statement explicitly marking the sale as "private" and disclaiming any warranty and the possibility of returning the item for an exchange or refund. In German, this is often worded along the lines of "Privatverkauf, keine Gewährleistung und Rücknahme." Does including this disclaimer confer any legal protection on the seller, or is it simply done as a courtesy to the buyer, or is it one of those bits of legalese that the lay public unthinkingly reproduce in the mistaken belief that it is somehow required? I am specifically interested in the case of Austria but would also be interested to know the situation in Germany, since in my experience this boilerplate text is ubiquitous and identical in both countries. | germany Yes, such clauses are common and useful. § 437 BGB describes the rights of the buyer in case of defects, such as reducing the purchase price, demanding cure, or revoking the contract. But these options only exist “unless otherwise specified”. That means an individual contract can exclude these rights (commonly called a Gewährleistungsausschluss). There are, of course, some limitations to the right to disclaim warranties. The disclaimers are ineffective if the seller keeps a known defect secret. The disclaimers cannot absolve the seller from all liability. While disclaimers can be part of individual contracts, they cannot be part of pre-formulated general terms and conditions (Allgemeine Geschäftsbedingungen, AGB) since they would disproportionally disadvantage one party. The relevant limits are given in § 309 BGB. Thus, such warranty disclaimers are common in private sales, but not generally possible in a B2C context. There is however some debate how a warranty disclaimer should be phrased properly. Your phrasing “private sale, no warranties or returns” might not be effective e.g. if its pre-formulated nature gives its the character of AGB, or if the unqualified disclaimer of warranties is construed as an invalid attempt to disclaim liabilities that cannot be disclaimed. It might also be worth discussing what a “defect” is in this context. The sold goods have qualities that the parties agreed to, or that follow from the general purpose of the goods. If the goods do not feature these qualities, the goods are defective and (by default) the buyer can ask the seller to fix this, for example by withdrawing from the contract. In retail, it is also common to accept returns of non-defective items. But such returns are entirely a matter of goodwill and do not have to be disclaimed. | Generally not. There is a notion in copyright law called the first-sale doctrine in which after a particular copy of a copyrighted work is legitimately sold, the purchaser can sell, lend, lease, give away, or otherwise dispose of the copy as he sees fit. Copyright does not give the copyright holder exclusive rights to authorize resales. See 17 U.S.C. § 109 for the relevant US law; in other countries the same principle is sometimes called exhaustion of rights. There are limits to the doctrine. In the US, it does not allow for for-profit software rental (for most software) or musical record rentals. Moreover, software companies noticed the part where the doctrine applies to a transfer of title (i.e. an actual sale). If you read a typical software EULA, it is generally quite explicit that the software was licensed to you instead of sold; this is why. Courts in the US have often enforced these provisions (particularly if the license imposes limits like "you can't resell it"); European courts have, as far as I know, been far less willing to accept that argument. However, as a general rule resale is specifically not forbidden by copyright. | Not only can’t you trademark it, you can’t use it The original logo is covered by copyright which belongs, prima facie, to the original artist. It doesn’t matter that they are based in Russia; Russia and the US are both signatories to the Berne Convention which means they protect each other’s copyright. That means you can only use it if it is fair use (it isn’t) or if you have the copyright owner’s permission (you don’t). Could I still use the logo I bought and trademark it in the US granted that the seller had made some revisions to the stock photo he found? Not if the seller didn’t have permission to make those changes. Creation of a derivative work is one of the exclusive rights copyright gives. The seller had changed up some parts of the stock image, this includes color scheme, orientation, and made the picture look a little low poly. See above. The original artist of the stock photo is based in Russia and as far as I can see there is no registered copyright on it and don't think they could apply for US copyright anyway. They already have copyright. They would need to register it in the US before they could sue but there is no impediment to them doing so. While I'm not sure where the seller (located in Pakistan) officially downloaded the logo, I had nothing to do with the final design of it or downloaded anything from a stock photo website myself, so I'm not sure if I'd be bounded by any terms of the stock photo website Makes no difference. Just because you didn’t steal the car, that doesn’t make it ok for you to drive it. The stock image is very niche and a bit random. Across all the websites the artist has published it on, it has about 5 or 6 downloads altogether. Not relevant at all. As far the copyright of the seller's work goes, the Fiverr terms state that buyers have all the copyright, though I don't know if this is nullified by the use of the stock image. You can’t sell something you don’t own. If the seller had no right to upload the photo (as it seems they didn’t), the terms of the website don’t matter. The true owner never agreed to those terms and isn’t bound by them. | For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle. | How Are Liability And Insurance Matters Usually Disclosed? Normally, in a car sharing arrangement, you must establish a membership or account with the car sharing firm that includes all of the terms and conditions of the agreement between the parties (at least by reference to a document that you acknowledge that you have had an opportunity to read), often in connection with downloading an app necessary to use the service. I also strongly suspect (as a comment below indicates) that if you dug around enough on the firm's webpage that a link to the relevant terms and conditions could be found, even if it wasn't in the most obvious place. But, this information will often not be on the firm's main landing page of their website, and can instead often only be reached with multiple clicks and/or drop down menus. Sometimes this is called a "terms of service", sometimes this is called a "master agreement", sometimes it is called a "membership agreement" or "account agreement". My list of names for this agreement is not exhaustive. Often these terms are also described elsewhere in simplified form, such as a "how to" brochure, or information that is posted on the interior of the vehicle itself or in a sleeve of documents in the car. Usually, in the course of the sign up process there would typically be a box to click and a link or scrollable portion of the screen at which you can review all of those terms and conditions which are the terms of the contract. What Must Advertising Say And Why? It is not generally necessary for the advertising itself to disclose every term and condition and detail of the arrangement. Generally speaking, an advertisement is considered merely an "invitation to make an offer" to enter into a contract, rather than an offer which can be accepted directly and form a contract. Of course, a particular jurisdiction's legislature certainly has the power to require that a car sharing company disclose liability and insurance information in a particular fashion set forth in a statute or regulation, if that jurisdiction's legislative body chooses to do so. Even when these issues are mentioned in advertising (even when some disclosure is required by law in adverising), usually this would be in the form of a sentence that incorporates another document by reference like "Additional terms and conditions, including terms and conditions related to liability and insurance, that can be found at . . . . apply." This is due to the practical reality that TV and radio ads are usually just 15-60 seconds allowing about 25-100 words or perhaps a few more if the announcer speaks quickly, and that ads in print or on a screen also typically have room for only a very small amount of text. Websites, in principle, provide an effectively infinite amount of capacity to host content, but considerations of ease of website use and the need to make the landing page striking for marketing purposes (as well as the need to make websites mobile user friendly when that is the only way that many Internet users can access the web) usually relegates the legal terms of the agreement to less attention grabbing locations. Often, these terms are disclosed more conspicuously when the terms and conditions change materially, something that often has its own little PR campaign accompanying it. Unilaterally Imposed Contracts of Adhesion One reason that disclosure isn't such a huge issue is that car share agreements are almost always mass produced, not up for negotiation, "contracts of adhesion" that only senior management of the firm has the authority to modify. In the case of these intangible contractually agreed services, the terms of the agreement are more akin to a non-negotiable product design than to the paradigmatic haggled legal agreement between parties. Thus, a customer has only two choices. Use the service according to the standard terms, or don't use the service. Given this reality, the average buyer of the services relies upon the market place rejecting contracts of adhesion with bad terms, upon testimonials (good and bad) from prior users of the service, and upon media publicity for notorious terms or incidents that makes it look like the business doesn't treat it customers well, to keep the agreements reasonable, rather than upon individualized decisions to use or not use the service based upon a detailed review of the contract terms. There are legal doctrines pertaining to contracts of adhesion that invalidate terms that are unconscionable or not within the reasonable expectation of a consumer unless those terms of conspicuously disclosed. A classic example, for example, would be that a car share agreement that imposed extraction of a kidney as a fine for being one days late in paying an invoice would be void as a matter of law, even if the referenced document said so in bold large face type and the customer clicked a box acknowledging having read the agreement. What Happens If There Is No Agreement Or Disclosure? If there was never a step at which the terms and conditions were disclosed or accepted, then the default rules of law pertaining to personal property leasing, together with the laws pertaining to automobile accidents and insurance (both statutory and case law) in the jurisdiction in question. In almost all cases, liability to third parties for accidents is generally a matter of tort law or statute imposed by the government, rather than being something that can be modified by agreement. Also, usually the government imposes minimum insurance requirements and the owner of the car also has an incentive (and often a legal requirement) to have car insurance in force. In the United States, the default rules of law pertaining to personal property leasing, are set forth in Article 2A of the Uniform Commercial Code, which has been adopted in every U.S. State, the District of Columbia, Puerto Rico, and each self-governing U.S. territory with its own internal laws. In countries Europe or Latin American or Asia known as "civil law" countries (i.e. in those countries outside the British common law tradition, the Islamic law legal tradition, tribal or clan or caste law, or legal systems with communist regime roots established in the 20th century), the equivalent default rules of law (governing personal property leases, contracts to provide services, leases and insurance) would be contained in either a civil code or a commercial code of that country in most cases. In common law countries, the contractual agreements tend to be longer than the default provisions of law are skinnier. In civil law countries, the reverse is true. A hybrid of these two approaches which also limits the need of customers to monitor contract terms is the regulatory model commonly used in the insurance industry in the United States takes the reality that contracts of adhesion are the norm and gives it a regulatory twist. In this hybrid model, all of the boilerplate language of every insurance contract down to the last word of non-customized or only semi-customized language, and often fee schedules as well, must be substantively improved by a state agency that regulates insurance. In these models, a public official negotiates the terms of the contracts with the firms, subject to intervention in and participation in the process by industry associations and non-profits or interested individuals on behalf of consumers or other interested parties. In these hybrid systems, the approved contract language which can't be modified in the boilerplate language by either the firms or the customers, is on file with the regulatory agency and provides constructive notice to all parties in much the same way as a statute or government regulation. If not enough material terms of the agreement (e.g. the rental rate) were disclosed to form a contract, then there would be no enforcement contractual arrangement involved in the car share and the car share company would have to rely on the law of unjust enrichment to recover the fair market value of the services provided in each case, which as a practical matter, wouldn't be viable as a business model. Distinctions Between The Two Kinds Of Car Sharing Arrangements There is some ambiguity in the question because there are a couple main types of car sharing arrangements. One is more like a rental car and you drive the vehicle yourself (Car2Go is one of them). In this case, the firm typically provides car insurance and does a limited background of a prospective account holders driving record before allowing someone to use the service. But, the user of the service, who drives the car, would be primarily liable for any accident that the car gets into. The other kind, sometimes called a "car share" and sometimes called a "ride share" is more like an Uber or Lyft, which is a glorified, on demand taxi service, in which a driver provides the services of the driver and the vehicle and takes car of insurance and will be primarily liable for any accident the car gets into as a driver and owner of the car. | Apparently, Yes In the ECJ's Breyer decision the final conclusion reads: Article 2(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person. It is true that in this case the decision was actually under Directive 95/46/EC, not the GDPR, but the GDPR took its definition of personal Data directly from Directive 95/46/EC, so that should make no difference. It is also true that in this case the website in question was operated by the German Federal government, an not by a private individual, or by a private business. A government might have "legal means" to link an IP address with an individual that a private actor does not. However in point 23 of the decision, the Court refered to the IP addresses as: ... stored by the Federal Republic of Germany, acting in its capacity as an online media services provider, ... which seems to indicate that the same ruels were being applied to it as would have been to a private entity. Point 44 of the decision says that: The fact that the additional data necessary to identify the user of a website are held not by the online media services provider, but by that user’s internet service provider does not appear to be such as to exclude that dynamic IP addresses registered by the online media services provider constitute personal data within the meaning of Article 2(a) of Directive 95/46. In point 47, the court says that: ... in the event of cyber attacks legal channels exist so that the online media services provider is able to contact the competent authority, so that the latter can take the steps necessary to obtain that information from the internet service provider and to bring criminal proceedings. This leads the court to point 49, where it says that; Having regard to all the foregoing considerations, ... Article 2(a) of Directive 95/46 must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person. Nothing in the decision indicates that any particular governmental authority was considered to provide the "legal means" to get an ISP to link an IP used at a particular time to an individual. In this page from Intersoft consulting it is said that: Since the definition includes “any information,” one must assume that the term “personal data” should be as broadly interpreted as possible. ... The same also applies to IP addresses. If the controller has the legal option to oblige the provider to hand over additional information which enable him to identify the user behind the IP address, this is also personal data. In this page from eugdprcompliant.com it is said that: A much discussed topic is the IP address. The GDPR states that IP addresses should be considered personal data as it enters the scope of ‘online identifiers’. Of course, in the case of a dynamic IP address – which is changed every time a person connects to a network – there has been some legitimate debate going on as to whether it can truly lead to the identification of a person or not. The conclusion is that the GDPR does consider it as such. The logic behind this decision is relatively simple. The internet service provider (ISP) has a record of the temporary dynamic IP address and knows to whom it has been assigned. A website provider has a record of the web pages accessed by a dynamic IP address (but no other data that would lead to the identification of the person). If the two pieces information would be combined, the website provider could find the identity of the person behind a certain dynamic IP address. However, the chances of this happening are small, as the ISP has to meet certain legal obligations before it can hand the data to a website provider. The conclusion is, all IP addresses should be treated as personal data, in order to be GDPR compliant. Finally the european Commission says, on this official page: Personal data is any information that relates to an identified or identifiable living individual. Different pieces of information, which collected together can lead to the identification of a particular person, also constitute personal data. ... Examples of personal data ... an Internet Protocol (IP) address; While the case law is scanty on the point, it appears that the consensus is that IP addresses, even dynamic IP addresses, will be considered to be Personal Data under the GDPR. > | The question is always, would a reasonable customer be confused into thinking that the two are the same, or that there is some relation or sponsorship or attribute to one product or firm the rightful reputation of another. That is always dependent on the specific facts and the specific market involved. So-called "famous" marks get extra protection. The exact markets involved will matter. Any stylizations such as colors and typefaces may matter. Logos may matter. I can't say if one of those specific names would be found to infringe on the other. | The agreement linked in the question seems to be or to purport to be, for a non-final, non-production version of the board. I have seen such agreements used, both for hardware and software, used when beta-test versions of products are being distributed to those who agree to do such testing, often in exchange for a reduced price on the final product, or an early look. I have also seen similar language used when an evaluation version of a product is provided free, or at a much reduced price. In such a use, it would be a reasonable contract, it seem to me, and I see no reason why if it were agreed to by both parties in such a situation, it would not be binding. Often such agreements also include a non-disclosure aspect, but this one does not seem to do so. I cannot see how such an agreement could be made applicable automatically, without both parties having chosen to agree to it, and indicated this by signing, clicking, or in some other positive way. I doubt that it could be made automatically applicable, on an "by using this product you agree" basis. I don't know of any physical consumer product, or appliance, sold with such an agreement in ordinary commerce. I am not sure what would happen if a manufacturer wanted to require all purchasers to sign such an agreement. I don't know if it would be binding. I would think that the purchaser's rights under the First Sale doctrice, could be modified by a valid contract agreed to by the purchaser. I do not think that they could simply be revoked by a contract of adhesion, which the purchaser had no choice to decline before making the purchase. As the OP says this was not signed or agreed to in any way, I can't see how it binds the OP. |
Squatters are not Trespassers? My wife is an assistant manager at an "affordable housing" complex (places that are not designated as such apparently admitting they are unaffordable, but that's a snide side note). A tenant recently allowed someone to move into his apartment as his caregiver. This woman then invited a man to move into her room with her, and they changed the lock on their bedroom door so the tenant cannot enter their room. The tenant wants them gone, and so does management. When they refused to leave, the police were called (this is in northern California, Monterey Bay area) The police say they can do nothing, as these people are squatters and must be given an official eviction notice before they can be forced to vacate the premises, and even then only after 30 days have elapsed. This seems crazy to me. Isn't what they are doing trespassing—at least on the part of the man? Could a burglar enter your home while you're gone, take over one of your rooms, and then be deemed a squatter? I don't see how this situation is much different. The police, when called, who came when the couple were out, found drug paraphernalia in their room, but as they cannot prove it belongs to the couple, said they could do nothing about that, either. Now they have even added another man to their room, so the tenant (who is handicapped—that's why he needed a live-in caretaker) now has two men and a woman living in his apartment who he doesn't want there. Can it really be so that he is legally bound to allow these strangers to share his apartment with him because of a technicality that classifies them as "squatters"? Say it ain't so! | The difference is that the person was originally invited to live there, so they do have a claim of residency. A tenant recently allowed someone to move into his apartment as his caregiver. This is the problem here, the person was invited to live in there in exchange for a service. This person now has a legal right to occupy the property and the eviction process must be followed. If the person broke into the house and occupied a room, that is trespassing since there was no original legal right to occupy the property. The trespasser cannot claim any legal right to the property and therefore is trespassing. Can it really be so that he is legally bound to allow these strangers to share his apartment with him because of a technicality that classifies them as "squatters"? Unfortunately yes. This should be a lesson to the tenant that they need to properly run background checks and have solid contracts with live-in caregivers/roommates. Unfortunately this is not only inconvenient, but will probably be an expensive lesson as well. | I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise. | I assume you are already living there? No, you can't use that clause, specifically because the "previous renter" is the person(s) who occupied the apartment prior to your moving in (the "start date", or the first date that your lease is valid). That clause doesn't allow you to break the lease if one of the current renters vacates the apartment and leaves their stuff. This only means that if the apartment was not ready for you to occupy due to the previous tenant not vacating, that you are allowed to walk away from the lease without any payments (other than a credit verification fee). This pretty much requires you to not "move in" in the first place. If you've already moved in, you don't have a legal leg to stand on since you deemed the property fit to move in (and should have done a walk-through prior to accepting the condition of the apartment). If this is you "getting on" the lease, and the lease specifically says that you are being added and your "start date" is some date in the future that you intend to move in, you may have a leg to stand on since this is more like sub-letting individual rooms with a common area. It isn't clear to me if this is the case for you. Once the other person is off the lease they have basically abandoned their property and you may be able to dispose of it, or have the leasing company dispose of it. | Clauses (a) and (c) are potentially relevant. You have to look in the Rules & Regulations to see what exceptions are permitted. Although firearms and especially shotgun shells are of a "dangerous, flammable or explosive character", it is reasonable to believe that when stored properly, they do not unreasonably increase the danger of fire or explosion, and would not be considered hazardous or extra hazardous by any responsible insurance company. On the latter point, you could ask any responsible insurance company if they would consider such shells to be hazardous. While in ordinary language simple possession of a firearm is not a threat of violence, the wording of clause (c) is open to a wider interpretation, since acts considered to be a threat of violence include displaying or possessing a firearm, knife, or other weapon that may threaten, alarm or intimidate others. The fact is that many people are alarmed by the simple existence of a weapon, so simply possessing a weapon could be interpreted as a "threat" in this special sense. Since you are not in the position of having signed the lease and now need to deal with the consequences of this clause, the simplest solution is to explain your interest, and ask them if having your gear in your apartment would be a violation of the lease. Be really clear about this and get it in writing in some form, if they say "no problem". Then either pick a different place, pick a different hobby, or find a separate storage facility. | You can always politely ask a person to leave, which could solve your problem. If that doesn't work, you will have to take legal action: you cannot change the locks or force him out (without the risk of a costly lawsuit). In Washington this would probably be the slower ejectment process, since you are not in a landlord-tenant relation. The actual process depends on the laws of your jurisdiction, though it is doable in any US jurisdiction. You probably have to hire an attorney to navigate the process, since an unlawful detainer action would likely be dismissed (that is, you have to file the correct action, not just some action that's in the ballpark). | I am sympathetic to your problem but there is probably not a legal solution: at least not an easy or cheap one. To help you clarify a whole mish-mash of issues I will address each of your points. frequently calls false noise complaints on neighbors resulting in police action. If the person genuinely believes that these complaints are valid, even if they do not end up being substantiated, he is within his rights to make such complaints. If you can document an ongoing pattern of unproven complaints this might amount to harassment and you could then seek a court order that he stop the harassing behaviour. However, if even a few of these complaints are proven this would become much harder. stands in front of the building in a menacing way as people enter/exit. He is entitled to stand wherever he likes in whatever "way" he likes. This is only an issue if the person entering/exiting has a reasonable fear that he will he will visit actual harm upon them, o, of course, if he actually does visit physical harm upon them. If so, then this is assault and can be reported to the police or be the basis of a civil action. hates black people. So, he's a bigot - this is not actually illegal. Discriminating against someone on the basis that they are black is illegal, hating them on that basis isn't. hates Middle Eastern people and Muslims. Ditto. constantly pounds on the floor/walls/ceilings. It can't be "constantly" - it might be often or even frequently, if you intent to take legal action hyperbolic language is not going to aid your case. To make a real complaint about this you would need to diarise each occurrence. Notwithstanding, unless he is damaging someone else's property or is violating a noise ordinance this is not illegal. screams curses at children. Clearly reprehensible behaviour: not clearly illegal. Unless this is assault (see above) or qualifies as offensive behavior under the criminal code wherever you are (unlikely) then he can scream whatever he wants at whoever he likes. Again, a pattern of such behavior may constitute harassment. Continues to park in handicap parking despite not being handicap, and receiving very expensive parking tickets. This is illegal and he is being punished for it. Unfortunately the expression Don't do the crime, if you can't do the time. has a corollary: if you are willing and able to take the punishment then you do as much crime as you want. And to add to the list, I suspect he's been putting nails in my car tire, always on the same tire, on the inside wall of the tire; I just replaced my 5th tire in 3 months. This is a crime. If you can get evidence to prove it then you can report him to the police and/or sue him for the damage. You have stated in your comments that you will be asking another question specifically about filming him, so I won't address this here. Is there some sort of legal incentive I've not clearly communicated to management to evict him? That depends on if any of his actions are actually grounds for terminating his lease and, if they are, the landlord wants to do so. A remote landlord who is getting his rent on time and not having their property damaged has no incentive to evict a tenant: no matter how annoying they are to others. It is possible, that you have a case for breaking your lease and/or suing your landlord for damages as you are not getting "quiet enjoyment" of the property. A suit along those lines may resolve the matter because either you or he will be evicted. Consult a lawyer. If he actually is insane, what sort of liability for his actions does he have? The same as anybody else. Liability for civil wrongs is an objective test of what a reasonable person would be liable for: it is not based on the specific characteristics of the person. | As 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". | I do not have anything official proving that I gave him the 2-months worth deposit What did you do, hand him a wad of cash? Pay by check, and put what it's for on the memo line. You've been there for nine months and there are several other people who can testify that you've been living there, so it would be difficult to claim that you aren't a renter. If you can show that the landlord is aware of your residence, that definitely helps even further, as does receiving mail there, registering to vote or with the DMV with that address, etc. Question 1 : what would be the best course of action to force the landlord to give me the requested lease agreement? You can't "force" someone to give you an agreement. That's kinda part of the definition of the word "agreement". If you find the conditions unacceptable, you can find another place to rent. When I asked the landlord about what he was planning to do regarding that, his answer was that it was not his business. It doesn't seem like it is. You could take the money you would have given to the other roommate, and give it to the power company instead. If paying for the utilities is part of the renters' responsibilities, and the renters are not paying for the utilities, then it's their choice to not have power. In California, landlords are required to make power available, but that just means that they can't interfere with you purchasing it from the power company, not that the landlord has to pay for it (if the landlord had agreed to pay for it, and isn't, then you can deduct the cost from the rent, but you can't simply withhold all rent, and your question indicates that the landlord hasn't agreed to pay for power anyway). Am I protected in any way, or can the landlord just come in my room and throw everything away, or worse just point me with a gun and force me to move? It would be difficult for the landlord to get rid of you, and would probably take several months to do legally. Performing an eviction himself, rather than getting the sheriff's department to do it, would expose him to serious charges, especially if a gun were used. Besides criminal charges, "If this or other unlawful methods, such as locking a tenant out or seizing his possessions before an eviction process has ended, are used to force a tenant to leave a property, a landlord may be subject to fees up to $100 per day of unlawful method use." http://homeguides.sfgate.com/tenants-rights-utility-billing-california-8073.html However, while the legal process will take a long time, at the end you will still be liable for back rent, and you will have an eviction on your record, which will make it harder to rent in the future. |
What is a citizenship? A human on earth can say "I define myself as citizenshipless" or "I define myself as a human without a citizenship" and alike ("I am global" or "I am free from citizenships"), and yet, that human could use a passport and/or an ID card in practice, so what is a citizenship exactly? I assume that citizenship is any time period in which all authorized officers (or enough officers) of a given state would agree to issue citizenship documents (for example, a passport) for that human. | Citizenship is essentially an imaginary label that sovereign states assign to people to say "this person is one of us". How those imaginary labels are granted, recorded, proved, maintained etc. is up to the sovereign state to decide. I assume that citizenship is any time period in which all officers of a given state would agree to issue identification documents for that human. Not accurate. Identification documents simply identify persons. They may or may not convey information about citizenship. Some (like driver's licences) do not. Other (like alien's passports) explicitly mean that the holder is not a citizen of the issuing sovereign state. Conversely, having troubles to get a passport does not necessarily mean that the person is not a citizen. In some circumstances it may be difficult to prove citizenship (e.g. emigrated as an infant with no birth record), and court proceedings may be needed to convince the authorities. | Question 1. Are technical identifiers personal data? Yes. If they identify a person. For example an IP Address is considered personal data, because a person or household can be identified by an IP. Yes, I know that technically there are a lot of exceptions. But in general, if you have an IP, you can identify the subscriber given the right databases. So if your identifier, lets say a generated GUID, identifies a customer or something the customer can be linked to, it is personal data. Question 2. Can technical identifiers be stored in measurement devices? Just because something is personal data, does not mean you are forbidden from using it. As long as you need it to do your job, you can store it. The internet would not work, if everybody was forbidden from storing any IP address. So to summarize it: yes, it is personal data since it identifies a subscriber. However, it is needed for the job your subscriber asked you to do. So for as long as the job takes, it is legal to store it. Once your job is done, you would be required to delete it. But consent trumps everything. If your subscriber consents to you keeping all data of such incidents to improve your network and handle future incidents better, then it's legal. Just let them sign it with your other legal paperwork. Done. No problem. You could just periodically delete all records that have no consent for long term storage beyond the current incident. Lets say every 24h or 48h. You should get the details on the wording of the paperwork and the period that it is legal to keep the data as "current incedent related" from your data protection officer or legal department. | 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. | 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 | I have heard that you have to spend at least six months in a year in US to remain eligible for naturalization. Is that really true? No, that is not true. There is no requirement regarding amount of time you have to spend in the US in a year. The only requirements are the continuous residence requirement and the physical presence requirement. You are presumed to break continuous residence if you have an absence of more than 6 months (though it is possible to overcome the presumption with strong evidence for absences of between 6 months and 1 year). Since your trips are less than 6 months, they should be okay. It is possible that if you returned for just a day, and then leave again, the officer might consider the absences are really just one big absence, which would then potentially jeopardize continuous residence. I don't think that should be an issue in your case. The physical presence requirement is just physical presence for half of the required period (30 months if you are applying under the 5-year rule). So you would not meet it if you were gone for more than half the year every year. But being gone more than half the year for just one or two years, with the other years being here the whole time, should not be a problem for the physical presence requirement. | Yes 15 USC 1501, which is part of the Lanham Act, the basic US trademark law, provides in subsection (a)(2) that: (2) The application [for registration of a trademark] shall include specification of the applicant’s domicile and citizenship, the date of the applicant’s first use of the mark, the date of the applicant’s first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark. This clearly implies that the applicant may have a citizenship other than US, or else ther ewould be nbo point in specifying the citizenship in the application. subsection (e) of the same section provides, in relevant part: If the applicant is not domiciled in the United States the applicant may designate, by a document filed in the United States Patent and Trademark Office, the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark. This makes it cleat that an applicant need not be resident in the US., 15 USC 1141a provides that: (a) In general The owner of a basic application pending before the United States Patent and Trademark Office, or the owner of a basic registration granted by the United States Patent and Trademark Office may file an international application by submitting to the United States Patent and Trademark Office a written application in such form, together with such fees, as may be prescribed by the Director. (b) Qualified owners: A qualified owner, under subsection (a), shall— (b)(1) be a national of the United States; (b)(2) be domiciled in the United States; or (b)(3) have a real and effective industrial or commercial establishment in the United States. 1141a (b2) and (b)(3) make it clear that an applicant need not be a national (citizen) of the US. The USPTO's page "Trademark FAQs" lists under the heading "General - Trademark Help - Getting Started - Other" the following Q&A: Must I be a U.S. citizen to obtain a federal registration? No. However, your citizenship must be provided in the application. If you have dual citizenship, then you must indicate which citizenship will be printed on the certificate of registration. | 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. | I am not sure what you mean by "accept". A citizen need not agree that any particular law is desirable, or good policy, or even rational. What a citizen must do is comply with all laws, or risk proceedings to enforce them, criminal or civil depending on the law in question and the specific circumstances. More exactly all valid laws must be complied with. In the US and many other places there are mechanisms for challenge laws as invalid. It is not generally a defense against an accusation of breaking a law that the law is not rational. |
Is it legal to describe something exactly as "cheese" without asterisks or other qualification if it doesn't contain any dairy? Is the marketing statement "our cheese is made of 100% plant ingredients" false advertising and is it legal? | The government guidelines on naming food products states that if an ingredient is different to what consumers expect, it must be made clear by either: including the ingredient as part of the product’s name stating the ingredient close to the product’s name on the label For example, if a pesto sauce has been made with parsley instead of the traditional basil, the product must either be: called ‘parsley pesto sauce’ have the ingredient ‘parsley’ stated next to or directly under the product name So, it seems that the phrases like "our cheese is made of 100% plant ingredients" or "plant based cheese" (without quotation marks or asterisks) are compliant with these conditions. As an aside, the names of 15 cheeses are legally protected, but this relates to their geographical origins - not the product’s actual ingredients. | It may be illegal under product labelling regulations that apply to that kind of product (or under a general deceptive trade practices act), but even then, only if you are interpreting the numbers, whose meaning is not clearly spelled out, correctly. But, to be actionable as fraud it must, among other things, be a misrepresentation as to a material fact (which if the goods, such as cordless drills, are not perishable it probably isn't) and the recipient of the misrepresentation must have justifiably relied upon the misrepresentation (which is necessary not true in the case of a representation that it was made in December 2018 on a product sold no later than July of 2018). It is also not entirely clear that this is a "made on" date. It could refer, for example, to the the twelfth batch or lot or shipment of products made in 2018, and not to the month of December, or it could refer to a product made in 2018 at factory number 12. @NateEldredge in the comments also makes the plausible observation that it could be a week number which is a common system in manufacturing which would put it in a more reasonable March 2018 time frame. You probably shouldn't do anything, because you haven't been harmed by this cryptic string of numbers embossed on the product, and even if you were, your damages would not be worth the time or money involved to pursue it as anything other than part of a class action lawsuit. | First take a look at Article 13(1) of Directive 2002/58/EC Article 13 Unsolicited communications The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use. Note that this is a Directive, so it is not directly binding, but each EU member state has created it's own laws containing this. I also quoted paragraph 2 for completeness, but based on your description, it does not apply. Article 95 GDPR explicitly specifies it does not change any obligations from Directive 2002/58/EC. So it looks very clear to me the situation you describe is not legal. Article 14 GDPR allows you to request all information regarding this, which included information how they have exactly obtained your name and email address. | Typically, these notices are required where the individual packaging lacks the statutory nutritional and warning labels. If this is the reason for the prohibition, selling them separately is a breach of public health law. It may also be a breach of contract with the vendor of the collective pack. Breaking them up and placing them in vending machines, even if those are not accessible to the public is probably unlawful. | No crime is committed if a person performs a service and ineptly describes the service. To change the context a bit, I might contract with a guy to build a wall and he says he will charge me for installing a "Swedish drain" when in fact what he will install is called a "French drain". If he installs the thing, it does not matter (legally) whether he calls it by the conventional name. I am not relying on the distinction between French and "Swedish" drains, and that is not material. However: he may specify that the drain will use 18 inches of 1.5" drain rock, but he uses (and intends to use) 18 mm of 3/8" crushed rock, and that is a material fact. In the latter case, he has committed fraud. The same considerations go into dealing with "unnecessary" service, which however is more about "what he said". Let's assume that you come in with a flat tire and the mechanic offers to overhaul the engine. If you agree to this service, that is not fraud, because he did not say something false that you depended on. If, however, you ask "Why would overhauling the engine be necessary" and he says, I dunno, "Because by law, I can't repair a tire without first overhauling the engine", or "Because you flat was caused by astral radiation from a poorly-tuned engine", then that would be fraud – the statements are false, and you relied to their truth, in agreeing to the service. On the third hand, reasonable statements like "it might help", "it could work" are not deceptive, even if it turns out they are not true. Fraud is not about statements that "turn out not to be supported by the facts", it is about statements that you know to be false. | what would be the threshold for a lie to be actionable where you could claim a damage? There is no award for "lies" which clearly are inconsequential. A customer will never make decisions based on whether "menu options have changed" or whether the business is honest on the statement "your call is important to us". The impact that the duration of these statements have on the customer is negligible at best, since omitting these statements does not improve the company's response time anyway. The statement "your call is important to us" might not even be a lie. Many companies know that it is in their best interest to gather information from their customers on what to improve, lest customers switch to a competitor or file suit. The lack of objective standards renders statements such as "best pizza in town" unascertainable. Accordingly, it would be unreasonable for a customer to rely on criteria that are subjective, undefined, unclear, and/or palpably fictitious. Only statements like "scientifically proven" and "lose x pounds in y hours" might be within scope of consumer protection laws (see also unfair and misleading practices). The assessment of those scenarios requires more detail, including disclaimers and other "small letters" that are --or ought to be-- disclosed no later than the formation of the contract. | Is that extortion? false advertising? or in any way illegal? Not at all. The owner of the site is simply exercising his right as outlined in the terms and conditions from when the user signed up. And giving users an option for continued use of the site (that is, for him not to exercise a right of which they were always aware) does not constitute extortion. | No If the price advertised is not honoured by the business and you are asked to pay a higher price, you do not have an automatic right to buy the item at the special offer or sale price. As long as the shop or business tells you before you pay that the higher price applies, you have the option to either buy it at the higher price or decide not to. However, the shop or business may be in breach of consumer law in relation to misleading advertising. The prosecution (or not) of the misleading advertising is the government’s task, not yours. This is a common formulation across Common Law jurisdictions as it a codification of the historic common law position. An advertised price is not an offer capable of acceptance, it is an invitation to treat. That is, it is an invitation for you to make them an offer and the price that is likely to be accepted. It is overlaid with later developments in consumer protection surrounding false advertising and misleading and deceptive conduct. |
How can I get past a ban on energy drinks at my school? Whenever I enter my school I'm forbidden to drink energy drinks. I asked them why and they listed lots of reasons why I wasn't allowed. I asked "why is smoking not forbidden but something so simple as drinking energy drinks is?" and they replied "smoking is a personal decision and drinking energy drinks doesn't just harm you but everyone around you due to the "behaviour" you output under the influence of energy drinks". Are there any ways I can legally get around this ban? | "When ever I enter my college I'm forbidden to drink energy drinks..." You are under a contract and bound by the rules and regulations of the college; read the contract you signed when you registered for classes and paid tuition. That contract will stipulate what you are allowed to do and not do in classes, in your interactions with tutors and faculty, and on the college grounds, either public or private, and probably covers a dress code, phone usage, and on and on. The only "loophole" you have available is to stop going to college. In addition, you are 17 and a minor under the law in many jurisdictions; this means you have fewer "rights" than an adult. And, the contract is technically between your parents and the college, not you and the college. | If the pill contained a harmful or noxious substance, this is battery, which is a crime in Lousiana ("the intentional administration of a poison or other noxious liquid or substance to another"). There is a specific crime in LA, battery of a teacher, which is dealt with somewhat more severely than non-teacher battery. It is not a crime to observe a crime being committed and not warn the victim, but it is a crime to aid the commission of the crime (for example to help the perp remove the lid, to supply the drug). Under section Title 17, a teacher battered by a student can file a school-system internal complaint which may lead to the student being expelled (this is ultimately covered by district-specific procedure). This is independent of criminal charges. | Although an academy is state-funded, it is not the government, so limitations on what a government is allowed to do are not applicable, and anyway there is no First Amendment separation of church and state in the UK. I presume your school has a formal faith designation, which means that it is not subject to Section 85 of the Equality Act 2010, which might maybe be a path for escaping the requirement. The "collective worship" requirement is mandated by the government under Section 70 of the School Standards and Framework Act 1998, which is extended to academy schools by the funding agreements. The requirement is that "each pupil in attendance at a community, foundation or voluntary school shall on each school day take part in an act of collective worship". Section 71 provides an exception: If the parent of a pupil at a community, foundation or voluntary school requests that he may be wholly or partly excused from receiving religious education given in the school in accordance with the school’s basic curriculum, from attendance at religious worship in the school, or both from receiving such education and from such attendance, the pupil shall be so excused until the request is withdrawn. Since a religious academy is not subject to the national curriculum, deviation from whatever the religious requirements are stated in that curriculum is allowed. | Does CCPA impact whether or not this is allowed? Probably not. Public schools are divisions of state government and there are limits to how much the federal government can dictate the operations of state and local governments. Limitations on whether public schools can monetize data collected from students (13+) would arise under state law. The state law could certainly expressly authorize the practice (and to some extent does already with profit generating sports teams and yearbooks). State law could likewise prohibit the practice. For the most part, state law is silent and it doesn't happen that much because it isn't very profitable. Is there different guidance for public (government-managed and nonprofit) vs private schools? The legal analysis is very different. I'm not as familiar with this area of law, however, and will leave that question to someone else. As a practical matter, private schools are in a very good position to obtain express consent to do so from parents and students, so that is usually how the issue is resolved, I suspect. | You can request in advance that you get only a half-dose: there is certainly no law prohibiting making a request. They may refuse or they may agree. If they refuse, you can go elsewhere, but you cannot compel them to do what you ask for, given current law. You can also yell anything you want, or flail about however you want, at your peril. You could seriously hurt yourself by jumping around, and you would not be able to sue them for your stupid actions. Nor could you sue them for assault, since to get the ball rolling, you have to consent to getting the shot. Although consent can be withdrawn, there is the practical matter that you almost certainly cannot effectively communicate withdrawal of consent in the time needed to finish administering the job. If it took 5 minutes to administer the shot, you might be able to say "I changed my mind", and they would be required to end the treatment, against medical advice. | Being disabled has nothing to do with it. If he is harassing students then after there is a complaint and investigation, then he can be banned from campus, and arrested for trespassing if he returns. But there would have to be a formal complaint made to the authorities first. | https://bchumanrights.ca/mask-poster/ Technically speaking is wearing masks a law, a health order or the store policy as a result of the health order? Technically speaking it's a Ministerial Order made under the power delegated to the Minister by the Emergency Program Act R.S.B.C. 1996, c. 111, s. 10. Can a customer be denied service or entry for not wearing a mask even if they claim they have a medical exception? No, they cannot. If they claim they have an exemption, then as far as you are concerned, they have an exemption. Refusing service would be illegal discrimination on the basis of disability. Must they prove it with some sort of certificate? No. Some people have claimed that they do not need to show proof. Those people are right. If the customer is acting in a dishonest manner, for example if I see them wearing a mask before entering the store, does that make a difference? No. Does the quality of mask or the material it is made of make a difference? Yes. They must wear a face covering. "face covering" means either of the following that covers the nose and mouth of a person: (a) a medical or non-medical mask; (b) a tightly woven fabric; Some customers pull their shirt over their face and my coworkers tell them that is alright. Depends on the shirt: if it is made of "a tightly woven fabric" then it is alright. | In general, you still need to pay for the drink. If you had purchased the drink (on credit, ie a tab or similar as you appear to have done), and you had offered the vendor CASH, and he had refused, [if you can prove you offered him cash] he would be unable to pursue you for the debt (technically you would still owe it to him, but as he had declined government issued tender the government won't act on his claim, so he has no remedy available to him to extract payment - although he can refuse to serve you in future etc). Paying through a debit card is not the same as paying cash - although the money goes out of your account and into his, its not "legal tender" in the same way cash is. |
Enforceability of terms of renewal in a fixed-term assured shorthold tenancy agreement I am renting a (London) flat with an Assured Shorthold Tenancy Agreement which has a duration of 12 months. Since this tenancy started at a time when property prices were temporarily low (during one of the coronavirus lockdowns), I requested an extra term in the contract to ensure the price would not go up too much at the point of renewal. The lettings agent added this term, which I agreed to: After the first 12 months of the tenancy the landlord has the right to increase the rent of the property to up to 3% at the rate of RPI. Now that the 12 months of the contract are ending and the agent wants to renew, they're looking to increase the rent substantially (by nearly 30%). Had I been aware that they would do this, I would not have taken the flat in the first place (hence me requesting the assertion in the contract). I'm aware that my easiest recourse is to simply let this tenancy end without renewing and move elsewhere (with the relatively lower costs which that entails), but this made me wonder about the enforceability of terms like this in a tenancy contract: the intent of the term is clear and unambiguous, but does it actually hold any legal sway? | When the fixed term ends, you have two options if you want to stay. The first option is that you and the landlord can sign a new tenancy agreement, with a new fixed term. This new agreement replaces the old one at the end of the current fixed term, so the landlord is free to make changes, including proposing any number for the rent - and you are free to reject it. Alternatively, when the fixed term ends, if you don't sign a new agreement, and you don't leave, the tenancy automatically* becomes a Statutory Periodic Tenancy - often called a rolling contract. This has no fixed term, which means that if you want to leave, you have to give 1 month's notice, while if the landlord wants you to leave, they must give 2 months' notice. Apart from that, the terms of the existing contract, including the rent review clause mentioned in the question, remain in force. The rent review clause suggests that the landlord can unilaterally impose a rent increase after the fixed term ends, but only up to the amount specified. Hence, without signing a new agreement, any increase beyond that would not be allowed. Also, it doesn't appear to make any mention of future rent increases, which suggests that the default rules for rolling contracts will apply, in that the landlord can propose a rent increase, which you can accept or reject. Failing that, the landlord can impose one via a Section 13 Notice, but only once a year. If you feel the requested rent is unreasonable, you can challenge this, and a tribunal will make a ruling based on the state of the property and the rents for similar properties in the area. (* If the tenancy has any provisions relating to what happens once the fixed term ends, then the tenancy may become a Contractual Periodic Tenancy. However, unless those provisions relate to rent, then they may not be relevant here.) | What does "PROVIDED FURTHER" here mean? The term keeps two provisions separate, and hence independent of each other (unconditional). The former provision addresses landlord's initiative [to terminate the lease] whereas the latter addresses tenant's initiative. The latter pertains to early termination of lease and is not to be confused with tenant's default/non-payment. If rent is to be paid on the 1st of each month and the landlord wants the tenant to move out by August 13, the landlord needs to give a written notice at least thirty days prior to August 1 because the 1st of August is "the next rent payment date". This is regardless of tenant's timely payment of rent. Tenant's initiative to prematurely terminate the lease forfeits his security deposit regardless of having hitherto/always paid rent on time. | 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. | could they make a realistic claim that I had voluntarily terminated my contract before the year was over? The employer's act would forfeit its entitlement to reimbursement of bonus. The clause clearly indicates that the triggering event is termination, not the anticipatory notification thereof. Furthermore, the employer's act would be a breach of the [contract law] covenant of good faith and fair dealing. That would be in stark contrast with your compliance with, and/or kindness in, giving a two-week notice. The employer's termination of your employment seems improper in equity insofar as it was aware of your notice and thus took advantage thereof. | 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. | I did the Googling: Prior to the case described in this article, a notice was to be deemed served if the sender can sufficiently prove that the letter was properly addressed, pre-paid and posted. Law - Section 7 of the Interpretation Act 1978 The case made it clear that the same law also sets a condition, where if the letter was not received at said mailbox, or too late received, the notice is to be deemed not served. The receiver is not required to prove that the letter has not arrived in the mailbox. Also, if your mail has been tampered with, you should contact Royal Mail - they will perform an investigation and put your mailbox in order. I work with tenants and landlords, thus lots of official notices. In this practice, it's often a recommended action to follow up on a notice and make sure the receiver has indeed received and acknowledged the notice. I don't know if it's a legal requirement, but often in disputes (which go to arbitration by a 3rd party), if one party states they did not receive the notice and the other party can't sufficiently prove that they did everything in their power to contact and confirm the delivery of the notice, the notice is regarded as not served. I believe you cannot deny post. If it's in your mailbox, it's your responsibility to check and read it. | Your contract is between you and your landlord. Separately, the landlord has a contract between himself and the agency. Your obligation to pay rent is owed to your landlord, not to his agent. Ask your landlord to send you an email (if you don't already have one) which requests you to pay rent from X date onwards to him directly. Then pay him the rent in the way he has requested. Barring some unusual terms of the contract (which you haven't provided a copy of), the agent will not have any grounds to sue you. | They are inclusive if the contract says they are, they are exclusive if the contract says they are. What does your contract say? The lease starts on 14/1/2016 This is the point at which the tenants rights begin - they can take possession from 12:00:00 am 14/1/2016. This date is included in the lease period The lease ends on 13/1/2017 This is the point at which the tenants rights end - they must be out before 12:00:00 am 13/1/2016. This date is excluded from the lease period. I have no doubt that the magistrate had a view on this but as a mediator, it is not their role to express their view: its for the parties to determine a solution which may or may not be informed by knowing the exact legal position. |
Could you steal money from a criminal organization and publicly declare it without legal repercussions? A random idea I had based on shows like squid game, or others that feature death games. In a real world setting in the USA, you have knowledge and details of an ongoing criminal organization without ever participating or working with them. You intend to come forward to the police with that knowledge with the intent of taking down or hindering said criminal organization before filing for witness protection. Let’s say in front of you is a lockbox containing ten million dollars in illegally gained dollars by the organization. You decide to take it on your way out. Could you publicly and legally declare the money you stole without any legal repercussions? | Stealing money is theft, see RCW Chapter 9a.56 in Washington, and analogous laws in other jurisdictions. What you describe is theft, as defined under RCW 9A.56.020, and that is a crime. Defenses are available only in case of an open taking made under a good faith claim to title to the property ("it's my money"), or an irrelevant defense related to pallet theft from a pallet recycler. There is no exception arising for goods "in the possession of a criminal organization". There is also no applicable attainder process for declaring an organization to be a "criminal organization" to which such an exception could be referred, in Washington or any other state that I am familiar with. At the federal level, 18 USC Ch. 96 does not have a provision for declaring some organization to be a "criminal organization", but it does prohibit using proceeds from "a pattern of racketeering activity" that a person or organization participated in, to support a business engaged in interstate or foreign commerce. There is an extensive but specific list of trigger crimes, which are all federal crimes. Supposing that a state wanted to make it legal to steal from criminals, there would have to be a suitable definition of "criminal". Compare the various sex offender laws, where under dell-defined circumstances, a person is legally declared to be a sex offender required to register. If the property is in fact the proceeds of a criminal activity (not merely "in the possession of a criminal") or is used to support criminal activities, it might be seized under civil forfeiture statutes. However, those statutes only allow the government to seize the property – vigilante civil forfeiture is still theft, a crime for which you can be prosecuted. The state might seize such assets and, when challenged in court, may have to prove that the assets a seizable (this is highly jurisdiction-dependent). The prospects that a prosecutor will turn a blind eye to a theft on the grounds that the victims are criminals is pretty small. More likely, everything gets seized and everybody gets prosecuted. | Is something considered stolen if it possibly could have been lost? Something is considered stolen if it was stolen. You don't have your passport + Someone entered the room where it was ≠ They stole it Can this be brought to small claims court? What damage did you suffer that could be remedied by a monetary settlement? Sure, the landlord entering your room without your permission is probably unlawful but it's not clear that it did you any damage. No damage; no case. Should the police or some other government agency care? Here is a ranking of government cares: Getting reelected National security Economic Management ... 42,567. Murder ... 421,762. Passport Fraud ... 7,656,232. Passport theft ... 58,432,546. Passports that might have been stolen but probably weren't | Suppose I obtain the ability to access someone else's cryptocurrency. This sounds like fraud e.g. I overheard them saying the password to their wallet out loud or I am a custodian of their assets. Nope, STILL fraud, possibly even Computer Misuse aka hacking... and because you use internet: it's Wire Fraud I now borrow those assets, keep them for some period of time, and then return them, without the owner's consent. hmmm, let's take california... Luckjy you, it is not embezzlement because you were not entrusted with the cryptocurrency, you gave yourself access. 503. Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted. No it is plainly... theft under California law: 484. (a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern. For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question. The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud. Giving it back doesn't matter. The person taking the crypto for any amount of time without being entitled to them is committing theft. You see, California doesn't interest that you just want to borrow. They don't even require Mens Rea for the mere taking - only for fraudulent pretense there is an intent question. In fact, it might even be automatically Grand Theft: 484d. As used in this section and Sections 484e to 484j, inclusive:[...] (2) “Access card” means any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access card, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by a paper instrument. 484e. (a) Every person who, with intent to defraud, sells, transfers, or conveys, an access card, without the cardholder’s or issuer’s consent, is guilty of grand theft. YIKES! and now, intent to defraud comes in, but that is actually minimal: that just means taking without being allowed to by the owner in many cases. | In the UK it is an offence to cause a computer to gain unauthorised access to any program or data held in any computer (s1 Computer Misuse Act 1990). It seems likely that other European jurisdictions have similar laws. Certainly Germany does: Penal Code 202a data espionage (German text - English translation). (I mention Germany because the linked thread does.) It might constitute theft in the jurisdiction if the finder did not take reasonable steps to find the owner - which may include informing the police of the find. Depending on the jurisdiction it might count as 'treasure' or abandoned property such that the finder is obliged to inform the authorities (the jurisdiction has the presumption of ownership of abandoned or lost property - e.g. Scotland), which then decide what to do with it. Legally speaking it seems to me that, to declare it legal, we have to get over such hurdles. [edit] There seems to be some dispute in the comments that cryptocurrency is subject to any regulation, counts as property, is something of value or is something that is owned and can be stolen, such that the person in the questioner's scenario could be held to account under the law for his behaviour. Aren't they merely numbers? No - plainly they do have value because people trade them with currency and goods and services. The UK's tax authority, HMRC, "does not consider cryptoassets to be currency or money" but sees them as having economic value because "they can be 'turned to account' - for example, exchanging them for goods, services, fiat currency (that is money declared by a government to be legal tender) or other tokens". They are "a new type of intangible asset". Individuals are liable "to pay UK tax if they are a UK resident and carry out a transaction with their tokens which is subject to UK tax". They are liable for "Income Tax and National Insurance contributions on cryptoassets which they receive from their employer as a form of non-cash payment [or from] mining, transaction confirmation or airdrops." (HMRC cryptoassets for individuals) Are they property? Something that can be owned, something that can be dishonestly appropriate (i.e. stolen)? That's the interesting dispute. Recently, the High Court of England and Wales ruled in a bitcoin ransomware-related case that "for the purpose of granting an interim injunction in the form of an interim proprietary injunction ... crypto currencies are a form of property capable of being the subject of a proprietary injunction". In that judgment there is some discussion of the authorities for considering or deciding they are property. ([2019] EWHC 3556 (Comm)) read from para 50 if not the whole judgment. In at least two other cryptocurrency-related cases the High Court treated the cryptocurrency as property. Vorotyntseva v Money-4 Limited, trading as Nebeus.com [2018] EWHC 2598 (Ch) and Liam David Robertson v Persons Unknown 2019. There was also a suggestion in the comments that the police would not understand and would not be interested. But there are several jurisdictions where people have been investigated, arrested, prosecuted and convicted of crimes relating to cryptocurrencies. A simple internet search for bitcoin theft, fraud or money laundering will result in some reports. In any case their interest or lack of it is irrelevant to what the law may say. | No. Your evidence of registration of the car would suffice to show that you are not receiving stolen property, although you are correct that not informing the police that it has been recovered could get you pulled over if the car has been reported as stolen. Given the circumstances of the question, I don't address the means by which the car is repossessed. Not every use of force would be justified to secure the return of the stolen car. Reporting the theft and recover to the police would also make it easier for you to make an insurance claim. Repossession of a car stolen by fraud (tricking you into signing over the car title to them in exchange for Monopoly money in an envelope that you don't check until after they are gone, or for a forged check), which is then sold to a bona fide third party individual for value, however, might constitute car theft. | Yes When you enter the jurisdiction of a country, you are subject to its laws. You are not, in general, subject to punishment for things you did before you entered its jurisdiction but if possession of bitcoin (or anything else) is illegal in that country, then possessing that thing makes you subject to prosecution. | 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. | Footage of an arrest is clearly evidence: tampering with it is a crime. Notwithstanding, destroying someone's personal possessions without authorisation is a crime. Accessing a computer (which all modern image and audio recorders are) without authorisation is also a crime. |
Can the Senate conduct a quorum without informing the Senators they don't get along with? Suppose party X holds 50 seats in the Senate, and party Y another 50. Party Y always tries to get in party X's way and has some backing in doing so by a minority from Party X Suppose most senators of party X decide they want to try to conduct Senate business without party Y and more moderate members of party X gumming up the works. So they create a private calendar of sorts, and invite enough senators from both parties to form a quorum and for party X to move forward with Senate business. So now, the less than 50% of Senators who thought this was a good idea control the quorum and can do whatever they want to do that a full Senate would never allow to happen. The Senators they don't want in the quorum aren't prohibited from attending the meetings, they are just never told about them. Would this be legal? | 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. | No, absent a state law to the contrary (and I am aware of no such law in this case) it is not illegal. Universities, as institutions, are permitted to express opinions on political issues, especially political issues that are pertinent to their operations. Indeed, they often do so. (Political candidates are arguably a different matter and certainly involve a more complex analysis to determine if the Johnson Amendment applies to a public university, but that isn't at issue in this case.) Governmental entities may not take religious positions, but may take political ones. Generally, even public colleges like Rutgers have this autonomy. Indeed, lobbying is frequently necessary for the survival of a public university - it has no choice but to lobby and a free hand regarding the issues upon which it does lobby. | Article II of the Constitution does say that "The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors". So it is true that a president or a federal judge could be impeached and removed from office, and it has happened to some extent 19 times – in 8 cases it went all the way to removal (as opposed to acquittal or resignation). However, this would not be a very effective way to avert a "crisis". Any judicial ruling is subject to appeal by a higher court, until you get to the Supreme Court. Moreover, impeaching a lower judge does not erase his or her rulings. So ultimately, a matter will be decided by SCOTUS. In anticipation of such a ruling, Congress might decide to get rid of some Supreme Court justice who they think might stand in the way. That was attempted with Samuel Chase, who was acquitted. Such a decision is not subject to judicial review (Nixon v. United States 506 U.S. 224). However, SCOTUS can also overturn that decision though that would be very unusual. It would also be very unusual for Congress to impeach a Supreme Court justice for having a position that they disagree with. At any rate, there is no such thing as a "deadlock" between branches of government. When the court rules, that is the end of the matter from a legal perspective. It is, in fact, entirely possible that a general will rule that the court or the president (or both) are wrong and will declare what the law now is, but that takes us out of the realm of legal discussions. | They are not considered public places in the way you mean, and in fact, the Ohio revised code specifically prohibits the kind of behavior you're referencing. Bottom line, any kind of party at the polling place itself is out of the question due to the possibility of limiting access or intimidating potential voters. | 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. | Yes. The leading case relevant to the question is Missouri v. Holland, 252 U.S. 416 (1920), in which the U.S. Supreme Court held that a self-executing bird migration treaty could override state law. It is also well established that a treaty may override a previously enacted federal statute. While there might be a requirement that the treaty not be a sham that really doesn't involve another county, or otherwise have an international component, as a practical matter, meeting this requirement is something that would almost always be possible. So, the President and a two-thirds majority of the Senate, in cooperation with a foreign country, by treaty, can accomplish legislative ends with which the House would not agree. As a practical matter, however, the two-thirds majority requirement for passage of a treaty in the Senate, the partisan organization of politics in the U.S., and the correlation of the partisan makeup of the Senate and the House, means that this observation is basically an irrelevant footnote. No treaty that could secure bipartisan support by two-thirds of U.S. Senators, and also be signed by the President, would not be able to be passed in the House. There has never been a time in U.S. history where one political faction has a two-thirds majority in the Senate and another political faction had a majority in the House. As a practical matter, it is almost always easier to pass ordinary legislation approved by majorities in the House and Senate, than it is to pass a self-executing treaty. The only scenario I could image where this might happen would be one in which an "old guard" President and Senate are in place, and then one election, some new political movement suddenly nearly sweeps the House and the U.S. Senate seats that are open due to some pivotal historic event, but there hasn't been more than a single Senate election or a Presidential election since that sea change in public opinion, something that very rarely has happened in other countries. | Does the party have any legal leverage to engage the police (or other competent authorities apart from private investigators) to help locate the witness and serve the summons on them? Not really. Legal process is not infrequently served by a sheriff's deputy. But the deputy will not generally take any initiative to locate a person to be served beyond what it provided by the litigant. The main reasons to have a sheriff's deputy serve someone with process is the fear that the person served might react violently. Or is it just the party's bad luck that the witness cannot be located and served on? Pretty much. | This is likely to be a matter of policy rather than law That is, it’s not likely there is a law prohibiting it but it is highly likely that the person’s training and their employer’s policy on the matter is that they must complete a ticket once they start it. It’s a pretty universal anti-corruption measure - it prevents the situation where they are writing the ticket, the owner appears and offers them half the value of the fine in cash to stop: well, they can’t stop so they can’t be tempted by the bribe. Of course, the bribe can be offered before they start but, when fighting corruption, you minimise the opportunities rather than eliminate them. I know that police and rangers (private people can’t issue tickets) in new-south-wales are so restricted. |
Bank will not take check I am trying to liquidate everything to escape the coming market collapse. I went to the bank with a 600k check and they refused to deposit it. It exceeds the fdic limit. Do I have any legal recourse? How do I get my money to a checking account before the market totally collapses? | The bank has the legal right to refuse to do business with you. There are exceptions but "wanting to deposit 600k" is not a protected class. The FDIC limit is 250k. Since the bank has chosen not to accept deposits larger than that, you need to split it across multiple banks or find a bank willing to take it. | If I did not sign promotion bonus document, my career would be over. Is this duress? No. The premise is hardly true or even logical, and what you describe falls short of duress. Not every imbalance of bargain power implies duress. First, it seems that you could have declined the bonus, thereby preempting the sanction/remedy for leaving within 12 months. Second, it seems hard to prove (and unrealistic) that your career would have been over if you refused to sign the document. The employer can easily refute that allegation by pointing out that there are many others who did not sign that employer's document and yet work elsewhere as investment bankers. You would need certain, additional context to reasonably allow for a conclusion that your career altogether depends on what happens with this single entity. Third, your mention that "the bonus mitigates the horrendous weekly hours" reinforces the idea that signing the document was your preference (namely, for the purpose of obtaining some additional, non-compulsory stimulus) rather than employer-inflicted duress. The rationale and decision for acceptance of those conditions reflects that you knowingly exercised your freedom of contract. A party is not entitled to void a contract only because he belatedly changed his mind about conditions of which he was aware beforehand. | How did she access your bank account? If it was a joint account then it is as much hers as yours and she can treat it as her own. If it is yours alone, how did she get in? If you gave her the PIN/password then you gave her permission to access it. If you didn’t, treat her like any other hacker - notify your bank and the police. | Yes; While contracts can be made in written and oral form bigger acquisitions normally are in written form. Also consider this: They can't prove that they told you that the balcony is not usable. Thats a big negative in buying a property and they would need to have it documented. If they still refuse consider seeking professional help. In my country lawyers offer "fast help" that isn't legally binding but costs you only 10$ and helps you finding out if your case has any possibility to get accepted/if you're right. EDIT: Regarding the reservation fee: You can dismiss that. You didn't reserved that object, you reserved a house with balcony. | It depends in part on what you mean by "money". US $100 bills are a prime example of "money". Art 1 §10 Cl. 1 of the US Constitution says No State shall ...coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts... Under the constitution, only the federal government can "print money" in the "universally usable" sense. Anyone can print or otherwise "emit" objects with economic value, and such objects can be voluntarily accepted in trade. State and local governments can incur debts and thus spend money now that they do not yet have, as long as there is no legal limit on a government's ability to go into debt. California could issue IOU-bucks with the intent that a holder could redeem them as real federal money or as gold or silver at some point. This limits the ability of a state treasury to print money, since in principle and practice it is redeemable in gold or silver. Each state has some set of laws and constitutional provisions that prevent writing rubber checks ad infinitum, for example only allowing debt for large capital projects (building) and requiring voter approval; requiring expenditures to not exceed projected revenues; granting emergency debt-mitigation powers (e.g. hiring freezes) to the governor when a state does go into unauthorized debt. In California, Art IV §12 of the state constitution requires a balanced budget, meaning that the state cannot create infinite obligations without infinite revenues. From the legal perspective, private banks do not create money, although non-legally, people may talk about what banks do as "creating money". At that point in the discussion, we will have left law and moved to the realm of economic theory. | The primary question is why the trustee is disposing of the asset at all. The trustee has a particular fiduciary duty (we haven't seen the document so we have no idea what that duty is). It could be justified because, for example, the grantor needs cash for a brain operation. Self-dealing (acting in one's own interest, which is a conflict of interest), is prohibited for a trustee. With real estate, "fair market value" is a fluid concept, but within limits one can determine that a sale (to self) at $900,000 undervalued the house and that a sale to another would have garnered $1,100,000, therefore this would be an illegal self-dealing. However, the simple act of a trustees purchasing an asset from a trust that he is the trustee of is not categorially prohibited. | There's some artistic license in play there - the US Treasury will replace damaged (or "mutilated" as they call it) currency for free under certain conditions. Lawful holders of mutilated currency may receive a redemption at full value when: (1) Clearly more than 50% of a note identifiable as United States currency is present, along with sufficient remnants of any relevant security feature; or (2) 50% or less of a note identifiable as United States currency is present and the method of mutilation and supporting evidence demonstrate to the satisfaction of the BEP that the missing portions have been totally destroyed. From your description they fail the first condition - they've burned it all so they aren't presenting > 50% of a note, 0% is clearly less than 50% [citation needed] and they also fail the second condition as it doesn't seem that they are carrying any "identifiable" portion of the money. Further: No redemption will be made when: (1) A submission, or any portion thereof, demonstrates a pattern of intentional mutilation or an attempt to defraud the United States. In such instances, the entire submission will be destroyed or retained as evidence. The "mutilation" was clearly intentional in this case. and (4) Fragments and remnants presented are not identifiable as United States currency. Seems to reiterate that you have to present some identifiable remnants. I suppose if the Embassy worker was a Bureau of Engraving and Printing representative, or the affidavits they provided were sufficient to convince the BEP that currency of x value was present, and completely destroyed etc. then the only hurdle would be the "intentional mutilation" aspect. The "intentional mutilation" itself is illegal under 18 U.S. Code § 333: Whoever mutilates, cuts, defaces, disfigures, or perforates, or unites or cements together, or does any other thing to any bank bill, draft, note, or other evidence of debt issued by any national banking association, or Federal Reserve bank, or the Federal Reserve System, with intent to render such bank bill, draft, note, or other evidence of debt unfit to be reissued, shall be fined under this title or imprisoned not more than six months, or both. | Please note that I'm not a lawyer. If you need specific legal advice, please consult a qualified attorney. Every time someone buys an item from someone else, there's at least an implied contract of sale where the seller of the item agrees to give the buyer the item to be purchased in exchange for a sum of money or other object of value which the buyer agrees to pay as consideration. Generally, in an online purchase, a contract of sale is completed when payment is made and the product has shipped. If the seller fails to provide the item you intended to buy after you make your payment, that's a breach of this contract of sale as the seller has failed to execute their end of the contract. I seriously doubt a "no refunds" policy would excuse the vendor for breaching the contract of sale. If you cannot resolve the issue with the vendor, then your best bet is to initiate a dispute through your credit/debit card issuer. |
Can fan art containing the IP of superhero characters be sold? Let's say it's illegal for anyone to sell fan art they drew of Deadpool online for $4,000 because it contains the intellectual property (IP) of the company Marvel Comics. But what if they drew a crocodile wearing the Deadpool outfit. Does that count as copyright infringement as well, especially if used for comedic relief? And how about mixing a DC Comics character with a Marvel character to make a crossover hero fan art that sells as one unique artwork (not franchised) for $4,000. Is that illegal, especially if it's perceived by every viewer as being comedic in nature? | united-states Copyright First of all, copyright infringement is not, in the usual sense "illegal". That is, it is not normally a crime. (It can be in extreme cases, but not the sort of thing described in the question.) What infringement is is a tort, that is, it provides grounds for the copyright owner to sue the infringer, and perhaps collect money damages and/or get an injunction (court order) preventing the infringer from continuing to infringe. Beyond that, let's consider what is meant by "contains the intellectual property (IP) of the company", and what the consequences might be. Some of this will differ depending on the country. Since no country is stated in the question, I will mostly use US law in this answer, with mentions of where it is likely to be different in other countries. Damages The image of Deadpool, or any other comic character, will be protected by copyright. If a fan artist copies this image (or any of the many such images published by Marvel) or closely imitates it, that will be copyright infringement. Marvel could sue and likely win. Damages can be sizable. In the US statutory damages can be as high as $150,000 per work infringed (or as low as $750, as the court thinks just). See 17 USC 504(c) Or the owner can instead get actual damages plus any profits that the infringer made. (17 USC 504(b)). The owner might also get an injunction under 17 USC 502, seizure or deconstruction of infringing works under 17 USC 503, and possibly costs and legal fees as well under 17 USC 505. Derivative work If the fan art is not a close copy, but is clearly based on the original art, then it may well constitute a derivative work US copyright law defines this in 17 USC 101 as: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. The more "distinctive elements and details" of the original that are used, the more clearly the fan art would be a derivative work. Creating a derivative work without permission is infringement, an the same remedies (damages, injunction, etc.) are available as for a direct copy under 17 USC 502 thru 505. Fair Use However, there is a possible exception to copyright available, namely fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it?. If a use is found to be a fair use, it is not an infringement. Fair use is defined in 17 USC 107](https://www.copyright.gov/title17/92chap1.html#107) which provides in pertinent part: ... In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Let's consider the fact pattern in the question in terms of these four factors: The allegedly infringing work is commercial in that it is being sold, almost suely for significant profit. Beyond that, the use does not seem to be transformative. Rather it seems to be used for much the same purpose as the original, so that the purchaser can enjoy the image of the character. If the fan art were making a criticism of or a comment on the original that would be different. As it is, factor 1 leans toward infringement, not fair use. The copyrighted work is creative and expressive, notr factual. This leans away from fair use. The fan art is probably taking a whole image, even if not a whole comic. This probably leans away from fair use, but more details might be needed. Selling individual images of the character is a market that the owner might well exploit, if it is not doing so already. The fan art might serve as a substitute or such an authorized image. Factor 4 leans away from fair use. There doesn't seem much chance of this fan art being held to be a fair use of the original, so that defense will not work. Note that when a work is a parody, it is often found to be a fair use. But in US copyright lay, a parody is a work that comments on or criticizes another work by means of retelling or reworking the source. A work that reworks or modifies a source merely for comic effect, or to criticize something other than the source work, such as to comment on society as a whole, or some social tend, is not ma parody in this sense. Such a work is sometimes described in copyright cases as a "satire". A satire in this sense will not normally be found to be a fair sue because of its satiric qualities, although in some cases it may be found to be a fair use for other reasons. Consider the case of Suntrust Bank v. Houghton Mifflin Co. 268 F.3d 1257, 1259 (11th Cir. 2001). This case dealt with a novel called The Wind Done Gone. TWDG retold Gone With the Wind from the PoV of the enslaved characters. It reused many characters and plot incidents from the source work. It was clearly derivative. But the 11th circuit court held that a major purpose of TWDG was to comment on GWTW by retelling it in altered form, and thus it was held to be a fair use (after considering the other fair-use factors.) Note that the fact that the fan use is perceived to be comedic does not, in and of itself, make the use a fair use. It might contribute to the fan art being found to be somewhat *transformative, but quite possibly, which in turn possibly helps tip factor 1 toward fair use, but quite likely not enough. And it doesn't really affect the other factors at all.Again teh details will matter. Composite Works This commetn asks: ... Let's say the exception is that it's a parody that mixes two different studios' IP to make one blended character, an amalgam. And would be perceived as a humorous caricature to many upon seeing it. Does this make it a fair use parody derivative work that is non-infringing? Such a composite would be a derivative of two or more sources. If the was a suit for alleged infringement of any of these sources, there would need to be a fair use analysis in regard to the elements of the source work that it is claimed to infringe in that suit. How much of that source was used would be relevant, as would the effect on the market for that source. Only if it in some way commented on that source would it be considered to be a parody of that source. The mere fact that such an allegedly infringing wok drew on two or more different sources would not, on its own, make it a fair use. Of course, if it drew on mny different sources it might not use enough of any one to be considered derivative.. Non-US Law The major current international copyright agreements are the Berne Copyright Conventionand the WTO TRIPS Agreement. Article 2, paragraph 3 of Berne provides: Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. Article 9, paragraph 1 of TRIPS states: Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom. Thus the protection of derivative works under Berne and TRIPS is similar to that under US law. Fair Dealing In the UK and many members of the Commonwealth of nations, the key ewxception to copyright is known as Fair Dealing. The details vary by country, but the key areas covered are: Research and study For this defense to apply, the infringer must show that the dealing was for non-commercial research or private study, private study excludes any study directly or indirectly for any commercial purpose. Criticism or review For this to apply, the infringer must be able to show that the dealing was for criticism or review, that the infringed work was previously made available to the public, that the dealing was fair, and that the dealing was accompanied by an acknowledgement Reporting of current events Parody, caricature and pastiche This seems to be rather broader than the US treatment of parody under a fair use analysis. None of these seem to apply to the situation describes in the question. "Parody, caricature or pastiche" might apply, but nothing in the question clearly indicates this. | You don't seem to be distinguishing properly between "original artwork" and photographs of it. A 19th-century painting will be out of copyright, so you can set up an easel copy it yourself, or even take a photo if the owners don't mind; your copy can be used however you please. However, other people can't use your photograph without your permission. Similarly, if you want to reuse a photograph used in an art book, the important thing is the copyright on the photograph, not the painting. | Yes it would be legal to do so. A full analysis would look at trademark law (where the bottom line is that the use of the Coke mark is not misleading since you are selling bona fide Coke), and copyright law. Whether it was non-infringing or fair use, is a closer call, but there is little doubt that one way or the other, this would be legal. | Under US law, and I believe under the laws of most countries, each of the various photographs of the apple would be protected by copyright. Thew initial owner would be the photographer, or perhaps the photographer's employer, in each case. Copyright protects expression, including both words and image. It does not protect ideas. The idea of an apple is not protected. The specific representation of a particular apple would be. If the painter imitates the specific feature of the apple shown in the photographs, to the extent that the painting is a derivative work of one or more of the photos, then the painter needs the permission of the copyright holder(s). Without that permission, creating the painting is infringement of copyright. However, if the painter merely took the general idea of an apple, and created a new expression of that idea, without using any of the specifics of the photos, there there would be no infringement. If the photos were instead images of an imaginary thing, perhaps a dragon, or some invented machine of building perhaps, with the images created by perhaps a compute animation program, or by photographing a model, the legal rules would be the same. If the painter simply used the idea from the photos, there is no infringement. If the painter used sufficient specific detail so that the painting is a derivative work, then permission is required. Exactly how much detail must be used for a work to be considered "derivative" is a matter of judgement -- ultimately the judgement of a court if the matter is disputed. There is no clear bright line making that distinction. That C has commissioned the painter T to create the painting is not relevant, unless C is the copyright owner of the photos, or has secured permission from the copyright owner(s). If C validly grants permission, then there is no copyright issue even if the painting is a derivative work. It does not matter what technique or technical means T uses to create the painting. T may use a brush, a pallet knife, a toy car, drips of paint, or a compute drafting program. If, by whatever means, T creates a derivative work, then permission is needed or else it is an act of infringement merely to create the work. If the work is not derivative, then no permission is needed. Copyright law applies no matter what specific technique the creator of an image uses, provided that human creativity is involved. | If the "Pokeball" image is copyrighted and/or a trademark of Nintendo/whoever makes the Pokemon games, then whoever put that image out there under CC 3.0 BY is in violation and can be sued and will probably lose, and you would be in violation and can be sued and will probably lose. Your penalty would almost certainly be less since your violation was "innocent", that is, you had no way of knowing that the "Pokeball" imagery was somebody's protected intellectual property. ... Except you kind of maybe should know that, unless whoever made the Pokemon games (Nintendo or other) put the image out there and you can verify that, that maybe this license could be bogus and you should consult with who you imagine the owner of that IP may be or an impartial professional who could tell you for sure. I'm thinking if it were me I would do a little more research - and maybe get a paid opinion - if I was really thinking about using this for any but private purposes. | Generally speaking, it is illegal for you to do this. Copyright gives the creator of the image the exclusive right to copy it, and just making copies to send to other people is probably not going to be fair use. Making copies without a license from the copyright holder would therefore be copyright infringement. Are there likely to be any consequences for doing this? Probably not. | We can't tell you if you can do that or not, because that would be specific legal advise. You should consult an attorney who specializes in trademark law to get an estimation of how risky it would be to use that name. So I am just giving you a couple general pointers. Names are not protected by copyright, but by trademarks. The purpose of trademarks is to prevent consumer confusion. They are supposed to prevent someone from selling a product under a name which consumers might mistake for official merchandise of someone else. Media companies in particular tend to be very protective of their trademarks, because merchandising is often one of their main sources of revenue. And they don't want to share that revenue with people creating knockoff products. Also, they must fight for their trademark in court, because when they only enforce it selectively, then they risk that a court will consider the mark so widely used already that it is no longer worth protecting. But the show is from the 1950s. Is the trademark still protected after all that time? Maybe. There are registered trademarks and unregistered trademarks. Registered trademarks, which usually but not always are followed by an "®" symbol, need to be renewed in regular intervals. So if someone still pays for the renewal, it might still be a protected trademark. Unregistered trademarks, which usually but not always are followed by a "™" symbol, are protected as long as they are "used in commerce". Which means that if the IP owner of that show still sells products branded as "Winky Dink and you", they can probably still claim unregistered trademark protection. In order to find out, you would need to do your own research or pay your attorney to do a trademark research for you. Are your proposed names even a trademark violation? Perhaps, perhaps not. That's for a court to decide. Personally I think that "Winky Dink and Me" is more infringing than "My Winky Dink Syndrome", because the first is a lot closer to the original name and brand image, giving it a higher likeliness of causing consumers to mistake it for an official "Winky Dink and You" product. But that's an argument you got to make in court. Estimating the chance that the judge will side with you and how much in legal costs it will take you to get to the point where you are even going to have the opportunity to make that argument is a job for your attorney. | This may well be infringement, but I agree that you should start by reaching out to the instructor. You don't want to pay a lawyer if the matter can be be adjusted peacefully. In the US there is a special limited exemption to copyright for "use in classroom instruction" which might apply in such a case. I am not sure if there is a similar provision in Canadian copyright law. But the instructor is likely to change his practice if you notify him of your objection, even if he has the technical right to use the photo. At least it is worth finding out. If he won't, then you can always consult a lawyer. |
Why does Section 28 of the Canadian Charter of Rights and Freedoms prohibit sex discrimination redundantly? In the Canadian Charter of Rights and Freedoms, Section 28 says: Rights guaranteed equally to both sexes 28 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. This section doesn't actually grant any rights or freedoms. It merely says that any rights and freedoms mentioned elsewhere in the Charter apply equally to males and females. But doesn't Section 15 already cover sex equality? Equality before and under law and equal protection and benefit of law 15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. If 15(1) already grants equal protection and equal benefit of the law regardless of sex, and the Charter is part of the law, then why reiterate that principle in Section 28? Is there any court case in which an argument or ruling hinged on the existence of Section 28? Or, was there a reason why the equal application of the Charter to both sexes needed to be made explicitly clear? | The Department of Justice has a nice guide on each section of the Charter, including section 28. As @MichaelSeifert's comment says, section 15 did not come into effect until later to give government time to resolve possible conflicting laws. During this time, section 28 can still be used to ensure other Charter rights are enforced on a gender equal basis. During the period from 1982 until April 1985, section 28 was the only Charter guarantee of sexual equality. It has been said that this may be the main effect of that section. There is to date limited jurisprudence on section 28. It is also important to note that section 28 is for interpretation of the Charter, not other laws. It cannot be directly applied to other parts of the constitution, ordinary laws nor other actions of the government. 28 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons. Equally, section 15 cannot be used to challenge other parts of the constitution, it can only be used against laws and actions at a lower level (Adler v Ontario (AG), [1996] 3 S.C.R. 609). The DOJ guide also describes this section as "interpretive, confirmatory, and adjunctive", in other word, symbolic. Nothing wrong with this, laws, especially constitutional acts that are profoundly political, are often symbolic. It also helps to contextualize section 1 analysis that determines the extent of acceptable limitations on Charter rights. Additionally, in my opinion, a very important historic reason is the Persons case. Section 28 is reminiscent and affirmative of the results in the that case, which declared that "persons" in the Constitution included female persons. This is was not as obvious as we would think today, gender-neutral language on its face did not mean that the law was interpreted in a gender-neutral way. Not to mention, in French, masculine forms (the Charter uses chacun and "tout citoyen canadien" for example) are often used as the generic (nothing wrong with this since gender in French is grammatical). But the section affirms the generic value of the expressions for both sexes, similar to subsection 33(1) of the Interpretation Act or other places where you see things like "masculine forms/pronouns has been used only for convenience and the rules apply equally to women.". The Supreme Court of Canada rejected women as "qualified persons" within the meaning of the Constitution for the purpose of appointing Senators; it was only because SCC was not Canada's final court at the time that the case succeeded in the British Privy Council. Notwithstanding clause As a compromise with the principle of parliamentary supremacy, section 33 of the Charter provides that (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15. [...] The legislatures cannot use the notwithstanding clause on other sections, e.g. democratic rights (sections 3-5), mobility rights (section 6) or language rights (sections 16-23). Section 28 is also not subject to a notwithstanding declaration, as such, it may mean that a government action notwithstanding other sections of the Charter nonetheless cannot violate sexual equality (but this question remain unsettled). This is one argument used to challenge the Quebec law on state secularism. The litigation is still ongoing, but the decision of the Superior Court of Quebec so far has disagreed with the preceding interpretation. The Superior Court deemed that once the legislature suspended the application of a Charter section, the rights in that section essentially are no longer guaranteed by the Charter and section 28 cannot be applied. | There is no hard rule that a strip search cannot be performed by a different-gendered officer. The hard rule is that the search must be reasonable (as required by the 4th Amendment) , which means that there have to be sufficient reasons for the search. Depending on the circumstances, a search of a male by a female, or in view of a female, could be reasonable – and in other circumstances it could be unreasonable. As the court in Cookish v. Powell, 945 F. 2d 441 said, In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted There are trends in the law which speak in favor of inmates right to privacy from cross-gender strip searches. Byrd v. Maricopa County Board of Supervisors is a recent decision where given the circumstances, a cross-gender search was found to be unreasonable. Cookish v. Powell is one where it wasn't unreasonable. This resource file assembles numerous court rulings, classifying them for judicial circuit, gender of staff vs. gender of inmate, sorting according to who prevails. The "rule" would be that the more intrusive the staff conduct is, the less reasonable the search is: but the more of an emergency there is, the more reasonable the search is. | In the US, there are separate regulations pertaining to different forms of discrimination for employment, thus there is no one-size answer. For sex, 29 CFR 1604.7 states: A pre-employment inquiry may ask “Male........., Female.........”; or “Mr. Mrs. Miss,” provided that the inquiry is made in good faith for a nondiscriminatory purpose. Any pre-employment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification, or discrimination as to sex shall be unlawful unless based upon a bona fide occupational qualification. Let us take it for granted that sex is not a bona fide occupational qualification for an academic position. Thus the question is lawful only if there is a legal underlying interest. Suppose the question were "As a man, would you be able to able to effectively empathize with your nursing students?": this does not serve a legally allowed purpose, and only serves to indirectly restate a sexually discriminatory premise. This University of New Hampshire guidelines pages summarizes the basic interview prohibitions succinctly. Notice that the language of the regulation is stated purely in terms of the existence of such an inquiry – it does not restrict such inquiries "as made by the CEO", or "as made by the hiring committee". It simply says that such an inquiry is not to exist. It is thus the university's obligation to assure that all administrators, faculty members, graduate students, undergraduates, staff members, and members of the general public who are allowed to participate in pre-hiring interviews know what kinds of questions are legal versus illegal. | A US state's constitution cannot "put restrictions on" the Federal constitution, or any of the rights guaranteed by it, if by that is meant limiting the rights Federally guaranteed. The so called "Supremacy clause" of Article VI says: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (The above was more relevant before the question was edited to remove the 'put restrictions on" language. But it is still accurate and somewhat relevant.) Similarly, and because of the Supremacy clause, the content of a US State's constitution cannot change the interpretation of the federal constitution, in either state or federal courts, including the presence or absence of rights similar to those protected by the Federal Constitution. However, a number of state constitutions have guarantees which parallel the federal First Amendment, particularly its freedom of speech and freedom of religion aspects. This is particularly true of state constitutions written prior to the ratification of the Fourteenth Amendment. At that time, the Federal Bill of Rights only restricted the federal government, and so when similar restrictions were wanted against a state government, they had to be in the state constitutions. See Barron vs Baltimore for the limitation of the bill of rights to restricting the federal government at this time. Such provisions did not usually reference the Federal First Amendment explicitly, they simply had more or less similar language. Since the passage of the 14th, and the incorporation of the various provisions of the Federal bill of rights against the states (largely starting in the 1920s) most court cases have refereed to the Federal provision rather than any similar state provision, unless, as is sometimes the case, the state provision offers greater rights or wider scope than the federal one does. | Provincial jurisdiction may need to be specified. But in general, assuming you are not covered by a collective bargaining agreement, you can be terminated for any reason or even no reason, as long as the contract is followed, the actual or apparent reason is not discriminatory or otherwise illegal and the termination procedure meets the provincial employment standards. The labour law usually provide requirements for notice periods or severance pay (or both), unless there exists a just cause (e.g. extreme disregard of duty, theft, repeated insubordination, etc.; lack of funds on the part of the employer is not a just cause). shouldn't the employer be fully responsible for the salary coverage of his employee in the course of his contract? Yes, but the contract is saying it can be terminated under certain conditions, after which time you are no longer "in the course" of your contract. Termination due to lack of funds is usually not considered discriminatory or otherwise illegal. You remain entitled to wages for any period you have worked. Additionally, the employer needs to respect the required notice period or severance pay under the provincial employment standards related to termination with or without cause, regardless of the funding situation. | The answer is a clear maybe. See https://www.gov.uk/discrimination-your-rights/types-of-discrimination Discriminating on the basis of sex is illegal, however, applying different rules on uniforms is probably not discrimination under the law. To be discriminatory it must put the class of person at an unfair disadvantage, be harassment or victimisation. You would have to demonstrate that refusing to allow females to wear trousers puts them at an unfair disadvantage (and vice versa because these are separate discriminations) - victimisation is not an issue here, harassment might be but it would have to be actually happening. You should look at things like comfort, practicality, sports, play etc.; the problem is that the better your argument for girls the worse it is for boys.😓 The steps you can take are spelled out in the link, starting with communicating with the organisation. So marshal your arguments and write them a letter and then move on to mediation. At the very least you should get an insight into why they oppose your position. If you deal constructively with their concerns you may get what you want. | The Universal Declaration of Human Rights isn't a penal code. It says very little about what should be a crime and only a little about what shouldn't be a crime or how those crimes should be punished. It is cribbed heavily from the constitutional rights set forth in the U.S. Constitution and the positive rights declared by FDR in connection with his New Deal agenda. It implies many positive entitlements and general principles that can't be achieved in the criminal justice system (Articles 1-2 and 13-30). Articles 3-12 pertaining most directly to criminal procedure are very modest expectations that many countries meet, and even more countries have enacted as law, even if the reality doesn't always live up to the law in the statute books. This is evident from their very brevity. Article 3. Everyone has the right to life, liberty and security of person. Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 6. Everyone has the right to recognition everywhere as a person before the law. Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. | This is the overview of employment discrimination by the EEOC (no legal reason for them to specifically put this under "youth"). To "discriminate" against someone means to treat that person differently, or less favorably, for some reason... The laws enforced by EEOC protect you from employment discrimination when it involves: Unfair treatment because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information. Harassment by managers, co-workers, or others in your workplace, because of your race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information. A subtype of harassment is "hostile environment harassment". See the EEOC page on harassment. It is unwelcome conduct that is based on race... Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Also it is illegal to punish a person for complaining about harassment. On the face of it, this could constitute racial harassment. The EEOC suggests that it is illegal here, in their FAQ Are White employees protected from race discrimination even though they are not a minority? Yes. You are protected from different treatment at work on the basis of your race, whether you are White, Black, or some other race. Although this is an advisory from the Dep't of Interior and not the EEOC, it is reasonable to assume that it was at least minimally vetted by competent lawyers who know discrimination law. What is prohibited is Unwelcome conduct, verbal or physical, including intimidation, ridicule, insult, comments, or physical conduct, that is based on an individual’s protected status or protected activities under Personnel Bulletin 18-01, when the behavior can reasonably be considered to adversely affect the work environment, or an employment decision affecting the employee is based upon the employee’s acceptance or rejection of such conduct (where race is a protected status). I don't know of any case law that establishes for certain that what you describe is illegal. The ministerial exception allows a religion to follow the rules of the religion in hiring its ministers, but otherwise doesn't exempt religions from prohibitions against discrimination. |
Can I sign legal documents with a smiley face? The signature on my driver's license is a unique and identifiable smiley face :-) I use this signature to sign all legally binding documents. A lot of the time, people reject it, and request an "actual signature". I then show them that it is the same signature as my driver's license, and they usually, (but not always,) accept it. Is my signature legal? Or must it be my name? If it is legal, is it a bad idea? | Can I sign legal documents with a smiley face? Yes, that is lawful. A person's signature does not necessarily have to include the person's name or initials. What matters is that the signature reliably and unequivocally identifies the person who produces it, which apparently you have been able to prove by showing your driver's license. The Black's Law Dictionary (4th Edition) states in its entry for signature that "whatever mark, symbol, or device one may choose to employ as representative of himself is sufficient". It directs to the entry for sign, which likewise speaks in terms of "any mark, as upon a document, in token of knowledge, approval, acceptance or obligation". Accordingly, your signature qualifies as mark or symbol that fits these purposes. Your history of signing other legally binding documents that way further reinforces the authenticity of your signature. If it is legal, is it a bad idea? It is a bad idea to the extent (if any) that (1) others can easily forge your signature (notwithstanding that forgery or identity theft might be proved circumstantially); and (2) verifying your identity may cause hassle or annoyance to you and/or third parties. But this paragraph obviously is applicable to any and all signatures, not just those which at first glance may seem to be a joke. | The general rule Birth certificates, social security cards, and driver's licenses identify a person, but what happens if these are all lost? Say a homeless person loses all of their documents in the shuffle, what could they do to recover them? Even further, if this person has no family or work colleagues who will vouch for them, is it possible that their identity is lost forever? Generally, these can be replaced. For example, I was robbed at gunpoint a couple of years ago and the robbers took (among other things) my driver's license and Social Security card, which were never recovered (I did recover one prescription slip from a dumpster about a mile away that was wrapped around a syringe, because the robbers were also injection drug users.) I went by myself without any ID to the DMV which had an online record of my driver's license containing my age, height, weight, sex, race, noted that I needed vision correction and also had my most recent driver's license photo and a fingerprint. I explained what happened without any corroboration, and they promptly issued me a new driver's license. The same process would have applied had I had a state ID in lieu of a driver's license because I wasn't licensed to drive for some reason (e.g. if I was blind). The process in Texas would be very similar (I don't know if they have finger prints though). My daughter had to do the same when she lost her driver's license while camping. With the driver's license, I was able to go to the Social Security office and have them reissue a Social Security card. One of my children's birth certificates was lost, and I could simply go to the Vital Statistics department with a name and date of birth and get a new one. The replacement birth certificate and driver's license involved a modest fee (which would be pretty daunting for a homeless person), but the replacement Social Security card was free. It's a pain in the neck to do this, and it took several hours to sort out (the time lost would not be a problem for a homeless person), but loss of my identity was not a serious possibility. If you have (or had before you lost it) a photo ID such as a driver's license, or state ID, or student ID, or passport in a system, reconstructing your identity isn't that hard. If you don't know who you are either. If you have amnesia, so you don't know the information needed to recover your records, it can be much harder to work out a lack of any ID. This happens something on the order of several times a year. Sometimes it is resolved promptly when the person regains their memory or is tied to a recent outstanding missing persons report, or is identified after a local TV broadcast seeking input from the public. But, if the person is not local, no one filed a missing persons report, and the memory loss turns out to be permanent, it can take months or years to get it sorted out. But, you will generally be assumed to be legally present in the U.S. until proven otherwise if you speak fluent English. Also, you can't easily be deported if no one can determine your nationality (including you), even if you don't speak fluent English. For example, if the only language you spoke fluently was an Amazonian tribal language and no one could figure out this fact, it would be hard to deport you without evidence of your country of origin, which by assumption, does not exist in this scenario. Officials sometimes try to crowdsource recordings of someone speaking or writing in these situations to determine their place of origins, which can take many months and isn't always successful. But, if your first language was Klingon, you would be quickly identified and not deported, because that language is widely recognized and a Google search would reveal that it has only two native speakers, both of whom are children who were born in the United States (I know their father as a casual acquaintance). Citizenship, arrest and deportation Can a person lose their citizenship in this manner? Could they be arrested or even deported? You cannot lose your citizenship in this manner, although it can be harder to prove your citizenship, if you need to do so. You shouldn't be arrested for simply not having ID (although it does happen) if you aren't driving a car without a license. Also, lots of people without ID are arrested all of the time for other charges, and then refuse to provide anything but a false alias to the police. But, they are usually not deported unless there is some reason to suspect that they are not U.S. citizens. A modest but significant number of people every year (on the order of dozens to a couple hundred) are arrested and deported in circumstances like these and the system can put someone in that situation in a very Catch-22 situation for which there a few if any legal remedies after the fact by way of compensation. Deportations Of U.S. citizens with strong foreign ties The hard cases are usually those when you have someone who is a child who has never had a photo ID, or is an adult who never had a photo ID in the U.S., especially if that person is someone who has lived much of their life abroad despite being born in the U.S., or is most fluent in a non-English language because their parents spoke that language when they were growing up, or was born abroad and naturalized as a citizen later (often as a relative of the primary person who earned the right to citizenship by taking citizenship tests). Establishing that you are the same person as the one in a birth certificate or naturalization certificate is not always easy. Naturalizations often aren't accurately cross-referenced with immigration records. And, the track record of ICE agents meaningfully following up on claims of citizenship is very poor. Identity assumption cases Another much less common hard case that still happens sometimes, involves a situation where you are born in the U.S. or to a U.S. citizen, giving you U.S. citizenship, and you have a birth certificate, but you live abroad for a long time, and in the meantime, someone similar in age, sex and race to you has assumed your identity to claim citizenship status. Then, there is someone else with a long paper trail that supports your identity actually belonging to them including photo IDs and maybe even a passport, and you have only your birth certificate that someone else claims is theirs with doesn't have a lot of provable biometric features other than your parent's names, which may be hard to use to establish that you are the true person corresponding to the birth certificate if they are deceased, and may require DNA testing or testimony from them even if they are not deceased. Persons declared dead A third class of people who have a thorny time re-establishing their identities are people who went missing, were declared dead legally by a court as a result, and then resurface. This can pose a problem even after they undeniably establish their identity due to rules relating to the finality of court orders. A fictional example of this is the title character in the live action TV series the Iron Fist in the Marvel Comics Universe. But, there are also real life examples, such as a man in Ohio a number of years ago who was in a similar situation (except for the fact that he didn't have superpowers, was middle aged, and wasn't an heir to a billion dollar fortune). These cases are very rare. There is probably less than one per year in the entire United States. | Trademark symbols Such symbols and notices were never required. Many company lawyers thought that they helped make a stronger case for infringement actions if someone did infringe. And perhaps also that they would deter people from using the trademarks without approval, perhaps even in ways that were legal but that the company did not like. (Companies routinely claim more trademark protection than the law allows.) Added, legal and source citations [15 U.S. Code § 1111] provides](https://www.law.cornell.edu/uscode/text/15/1111): Notwithstanding the provisions of section 1072 of this title, a registrant of a mark registered in the Patent and Trademark Office, may give notice that his mark is registered by displaying with the mark the words “Registered in U.S. Patent and Trademark Office” or “Reg. U.S. Pat. & Tm. Off.” or the letter R enclosed within a circle, thus ®; and in any suit for infringement under this chapter by such a registrant failing to give such notice of registration, no profits and no damages shall be recovered under the provisions of this chapter unless the defendant had actual notice of the registration. emphasis added This section was last revised in 1988, and dates originally from 1946 The US patent and Trademark Office (USPTO) publication Basic Facts About Trademarks (PDF) says (on page 9): Each time you use your mark, it is best to use a designation with it. If registered, use an ® after the mark. If not yet registered, use TM for goods or SM for services, to indicate that you have adopted this as a trademark or service mark, respectively, regardless of whether you have filed an application with the USPTO. You may only use the registration symbol with the mark on or in connection with the goods/services listed in the federal trademark registration. However, no specific requirements exist as to the precise use of the “®” symbol as to placement, e.g., whether used in a subscript or superscript manner. emphasis added Added Analysis I cannot find any provision of US law requiring use of the ® symbol or any of its equivalents. However failure to use it may reduce the damages available in the case of infringement. I cannot find any provision of US law authorizing or requiring the use of the tm symbol. It appears to be a matter of common law, that is judge-made law, and a reference to court cases would be needed. There have been significant developments in US trademark law in recent years, but mostly in the degree to which First Amendment concerns are being held to limit tr4ademark protections. I found no change in regard to the symbols, their use, meaning or effect. Many countries, unlike the US, do not grant protection to trademarks unless they are registered, so the tm symbol is largely a US usage. What Changed? To the best of my knowledge, there has been no change in US law on this issue in recent years. I see lots of tm and ® symbols on everyday products. I just looked at the power supply for my laptop and it has a tm after the maker's name. I just looked at a candy bar wrapper and it carries an ®. If there WAS a recent court case that changed the practice or influenced a change I haven't heard of it, and I've done some reading in recent major trademark cases. But I am not a lawyer, much less an IP lawyer, so I can't be sure. Another possibility is that the comparatively large symbol adjacent to the large logo on the front of the package was removed, and a smaller logo, with symbol, was placed on the back of the package. That would probably give legal notice to any would-be infringer. | Stating "This is not blue" or "TINB" on something that is self-evidently blue is of no legal effect Legal advice has the following characteristics: Requires legal knowledge, skill, education and judgment Applies specific law to a particular set of circumstances Affects someone's legal rights or responsibilities Creates rights and responsibilities in the advice-giver If the advice you give meets these criteria then it is legal advice. However, if you are clear that you are not a lawyer and that you are not giving legal advice then this undermines the characteristics above. That is, what would be legal advice without such a disclaimer may lose that characteristic if the disclaimer is genuinely given in the particular circumstances. Context matters: "this is not legal advice (wink, wink)" is not a disclaimer and doesn't turn legal advice into not legal advice. Similarly, the disclaimer must be genuinely understood by the recipient so that they are adequately warned to do their own research or seek actual legal advice before taking the course of action outlined. Using an abbreviation is more likely to be misunderstood but, again, context matters. In the context of this particular site (see various meta questions), which goes out of its way to explain that this is not legal advice the disclaimer is hardly necessary and the abbreviation would be fine. More generally Communication is always under tension between clarity and brevity. It should be detailed enough that it can be understood by its audience but not so long that its audience switches off. Abbreviations, acronyms, symbols and jargon (all of which I’m going to abbreviate to abbreviations) sacrifice clarity for brevity. Depending on the context and the target audience an abbreviation may or may not need to be spelled out in full. In formal writing, it is good practice to spell them out when first used and put the abbreviated form in parenthesis immediately afterward. Alternatively, scientific and engineering reports may use a glossary at the front or back to list them all in one place. It is extremely good practice to explain these abbreviations in any document that is intended to have direct legal consequences like legislation or a contract. Here clarity is waaaay more important than brevity. In a similar vein, it is quite common for such documents to explicitly define real words that already exist to narrow or broaden their scope in the interests of clarity. However, sufficiently common abbreviations may not be spelled out even in these. For example, USA, UN, UK, and EU are in such common usage that they would not need to be spelled out. Similarly, state or province abbreviations would not need explanation within their own country - while an American should know what IA means they might struggle with NSW. Similarly, some contractions may be so common within a profession or industry that no explanation is needed. For example, no scientist or engineer would need to be told what Pa, N, and m mean. In more informal settings (like texts or WhatsApp chats) spelling them out would make you look like a pompous dickhead. If it's sufficiently clear that a reasonable person in the position of the recipient would understand it then legal consequences can flow from it. Ultimately the decision of it it was clear would be a matter for whoever was deciding any dispute about it. | In most jurisdictions a message sent by email is now legally the same as one sent on paper by, say, postal mail, and a name typed at the end, or other indication of source is the legal equivalent of a physical signature. You are probably in the same legal position yu would have been in if you had written, signed, and sent by post a letter of acceptance. | When you put a logo that is a legally recognized trademark or servicemark in an acknowledgements section of a document, you are not infringing on the mark. A mark if infringed by someone using it when it is used in a manner that falsely communicates an affiliation with, or an endorsement of, the mark owner of the type of good or service that is protected by the mark. Using a mark in an acknowledgment section doesn't communicate this message (unless, of course, the acknowledgement section falsely says otherwise, which it wouldn't in the case posed by the question). Instead, this use is what is called "nominative use", and this use also expressly acknowledges and reaffirms that someone else owns the mark and has not licensed it to the author of the work containing the acknowledgement. So, this use of these logos does not infringe on the trademarks or servicemarks that protect these logos. | It is legal to be wrong, it is legal to say false things in public (leaving out defamation), and it is legal to buy and manufacture signs that say false things. Moreover, the sign does not make a false statement, in that legal liability is distinct from moral responsibility. In fact, the sign helps to decrease their legal liability. Via this sign, you have been put on notice that the truck may spray a bit of gravel, so by following too closely, you are negligently contributing to the damage. This is what also underlies those disclaimer signs with "not responsible for theft from your auto". There is nothing "official in appearance" about this sign (a legal citation of a statute might have such an appearance). | IMHO, your questions reflect several misunderstandings of how the process works. So, with your permission, I will avoid directly answering your questions and instead focus on suggestions how to best help you plot a path forward. Your counterparty has the burden of proof. If your counterparty forged your signature on a contract, then they must prove you signed it or they can not enforce it. In order to enforce the contract, they will need to sue you civilly. Then you can introduce evidence of their forgery at that time. Inform your counterparty you did not sign the contract. Then act accordingly. If your counterparty forged your signature on an extension contract then you should inform them immediately after it has come to your attention. Advise them you have no intention of complying with a contract you never signed. And that if they try to enforce the forged agreement, you will defend yourself "vigorously." Never threaten criminal charges to advance your position in a civil case. This behavior is a crime in itself. It's called extortion. If you want to pursue criminal charges at some point then do it without relating it to the civil case. The police are not your only means of pursuing criminal charges. You can also schedule a meeting with your District Attorney, State's Attorney (whatever that position is called in your state) or your state's Attorney General. In other words, you might want to approach the government's attorney responsible for prosecuting crimes in your jurisdiction. Forget about involving the police. They have given you their position on the matter. Approach the DA or AG office instead. If the DA/AG decides to use the police, she we will make that decision then inform the police how she needs to use their services. Police are wary of being used as leverage in civil disputes. That's probably the reason for their policy decision regardless of whether it's technically justified by the law or not. Your counterparty can't "fix" anything. If they claim you signed a document you did not, they will have to produce that document with your signature on it. This will presumably be your Exhibit A evidence they forged it. Disclaimer: I am a lay person and not an attorney. This writing is no substitute for proper legal advice. If you need help with a specific legal situation please hire an attorney and do not rely on anything I have written here. |
Is affirmative hiring illegal in Germany? Saw this ad: https://stackoverflow.com/jobs/565648/women-in-tech-all-levels-at-sustainable-start-finn With the headline: "Women in Tech - all levels - at sustainable start-up (f/x) - Munich or Remote" Wondering if only hiring f/x would be legal in Germany? | No, it’s not legal, § 7 Ⅰ | 1 AGG (“employee” includes applicants, § 6 Ⅰ 2 AGG), unless the the job requires a certain sex, § 8 Ⅰ AGG, example: porn actor. If you’re a good lawyer, you can argue that a women’s shelter hires females only, but only as far as the specific position includes interaction with patrons (i. e. janitor, or accountant must still be open to everyone). Advertising unwarranted gender-discriminatory positions is already illegal, § 11 AGG. There are some people who abuse their legal rights and apply for such a position, include a discreet statement about their sex, and after receiving a rejection file a lawsuit for damages, § 15 AGG, usually 3 months worth of wage. | In general, in the US, employers have very wide latitude in how they decide whether or not to hire someone. There are specific factors like race, sex, national origin, disability status, etc, on which they cannot discriminate, but otherwise they can do as they please. It would be perfectly legal for a company to decline to hire you because you had previously sued them. | Under U.S. federal law, and under the few state laws of which I am aware, it is not unlawful to expand a pool of applicants based on a protected class such as race, age, sex, etc., but it is unlawful to select an applicant for employment based on a protected class. An advertisement could lawfully encourage applications by persons having certain protected attributes (e.g., born and raised in South America; Native American; Veteran; transgender) in order to diversify the workforce, but it could not lawfully suggest that hiring preference would be given to applicants with those protected attributes. That's a fine line, and it's easy for an employer to cross it, either willfully or inadvertantly. It's best--from both a practical and a legal perspective--to determine the hiring criteria and process before seeking applicants; and to separate that screening process from the advertising process. The advertising process could, for example, target underrepresented groups as long as it did not preclude other persons/groups from learning about or applying for the opportunities. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | The general rule is that the author of the software owns the copyright, so that would be the student. This is regardless of whether the student writes the code for fun, or for a thesis. If a student is hired to write that code, then it kind of depends on the university rules, and who hires the student. In the case of a "work for hire", the employer owns the copyright. However, it is non-trivial to determine whether that principle is applicable in the case of a student hired by the university. In part, it depends on which country this is in because work for hire laws are not exactly the same everywhere, and in part it depends on the details of the employment my a university. In a typical US institution RA appointment, it would come down to university policy – some universities declare that copyright in all student-written software is retained by the student. You would need to look for something resembling an "IP Policy" – here is a sample, note that such policies are subject to revision. | Is this legal? Generally yes, unless it unlawfully exceeds the scope of the license. Also, if it is, how can I check if it's permitted by the original store's EULA? Read the whole EULA, focusing on terms related to resale, assignment, and transferability. | Would the following advert be illegal currently? The advertisement is lawful everywhere except maybe in jurisdictions with a heavy theological/religious component. In all likelihood, an advertisement that only lists flights within the US and is directed "[t]o the guy who's got a girl in every city" is meant for the US market rather than the Haredim (in Israel) or their Islamic counterparts, let alone the Taliban. What specific laws would it disobey and why? In some trends of Judaism women have an obligation to cover their natural hair when in public. Likewise, women in Iran must wear a hijab. This implies that, already from the "hair" standpoint, all women in the advertisement except maybe "Your Dallas darling" would be in violation of the law. This might soon stop being the case in Iran, given the recent or ongoing protests after the morality police's killing of a woman who defied the hijab law. Hair matter aside, models' outfit in most or all photos in the advertisement would be in violation related laws in those jurisdictions. The violations are in the sense of "indecent exposure". Someone knowledgeable in the laws of Iran, of other orthodox Islamic countries, or of Israel's legal framework would be able to identify the specific statutes or religious-legal principles at issue. Ultimately, those prohibitions are premised on the Talmud (in the case of Judaism) and the Sharia (Islam). | Generally speaking, no: Sex is a protected characteristic and discriminating between applicants based on a protected characteristic is prohibited so an employer is not free to hire only men or women simply because they would prefer to. But there are exceptions, like “occupational requirements” (which is probably what your athlete example is getting at). And, looking at the example you provided, it might - with a caveat - fall under an exception called “positive action”, as provided in section 158 and 159 of the Equality Act. However, the conditions under which this is allowed are tightly regulated and it would come down to the specifics (e.g. whether the number of women in that activity is “disproportionately low”). The caveat is that the Equality Act specifies that the protected characteristic (i.e. sex/gender in this case) can only be taken into account when choosing between two equally qualified candidates. I don't know whether this was ever tested in court but this would probably preclude advertising a position as “women-only” (as opposed to soliciting applications from both men and women and then selecting a woman with the explicit goal of increasing the number of women in your department). The Government Equalities Office guide on positive action also contains language strongly suggesting that limiting the search to women from the get go might not pass muster: Positive action can be used at any time in the recruitment or promotion process. […] However, it is expected that, in the vast majority of cases, any use of positive action as a ‘tie-breaker’ between candidates who are of equal merit for a particular post will be at the end of the recruitment process, at the actual point of appointment. […] In order to use positive action provisions in a tie-breaker situation, the employer must first establish that the candidates are of equal merit. Note that there is no such “equally qualified” clause in section 158, which deals with everything else than recruitment and promotion. Thus, it is perfectly fine to create a training programme that would be only open to women, if the goal is to increase the proportion of women in an activity where it is disproportionately low (an example provided by the same guide is a development programme “to help female staff compete for management positions”). Incidentally, all this is allowed under EU law (articles 5 and 7 of Directive 2000/78/EC). |
Do high-asset / low-income people qualify for free medical care in California? Can people with low incomes qualify for free medical care (Medi-Cal) in California regardless of their liquid assets? A document on the Department of Health Care Services site (pdf) notes off-hand: Note: Medi-Cal disregards property for individuals whose eligibility is determined utilizing your Modified Adjusted Gross Income (MAGI). But on the other hand, calhealthadvocates.org says: To find out if you qualify for one of Medi-Cal’s programs, look at your countable asset levels. You may have up to $2,000 in assets as an individual or $3,000 in assets as a couple. Is there a basis for this policy in law, and do high-asset / low-income people qualify for free medical care in California? | Can people with low incomes qualify for free medical care (Medi-Cal) in California regardless of their assets? For some programs, but not others. The main exception, discussed below, is the Medicaid expansion component of Obamacare (a.k.a. the Affordable Care Act). One of the exceptions to the general rule considering property is as follows: The Affordable Care Act introduced a new methodology – Modified Adjusted Gross Income (MAGI) – to define a family’s size and count income in order to determine eligibility for insurance affordability programs. 42 U.S.C. § 1396a(e)(14). As a result, household determination and income counting rules are largely aligned among Medi-Cal, the Medi-Cal Access Program (MCAP, the low-cost health insurance for moderate income pregnant women), and Covered California, with some exceptions. For Medi-Cal, the MAGI rules apply to the following programs: Expansion Adults (adults aged 19 through 64); Parents and Caretaker Relatives; Pregnant Women; and Children. Medi-Cal’s Tuberculosis Program and the Refugee Medical Assistance program also now use the MAGI income methodology. See Welf. & Inst. Code 14005.20(b)(2) and ACWD 15-16 (Mar. 20, 2015), http://www.dhcs.ca.gov/services/medi-cal/eligibility/Documents/ACWDL2015/ACWDL15-16.pdf. These programs, however, are not considered MAGI Medi-Cal in the Medi-Cal hierarchy because they are limited in scope or duration and should only be used when an individual is not eligible for any other form of free Medi-Cal. In general, unless an individual gets Medi-Cal through a linked program such as SSI or CalWORKs, or due to former foster youth status, Medi-Cal eligibility is reviewed for the MAGI programs before looking to the Non-MAGI programs. Outside that Obamacare program, someone can have significant assets of types that are exempt from consideration (e.g. in the Medicaid nursing home program), but they cannot qualify regardless of their assets. The exact extent to which assets are disqualifying varies by subprogram, with ordinary Medi-Cal, the nursing home program, and the CHIP program for children, having different requirements. The key language is "countable asset levels". This is defined in a combination of state statutes and regulations which in turn are enacted in order to comply with federal Medicaid program requirements. Only some assets count for purposes of Medi-Cal eligibility. In particular, a personal residence, a single motor vehicle, certain household goods, certain retirement assets, certain cash value in life insurance policies, and investment assets that don't generate current cash income and are impracticable so sell in a timely manner at anything approaching their true value because they are illiquid for some reason or other, don't count. Exactly what does and does not count as a countable asset for purposes of Medi-Cal eligibility is a rather technical and detailed matter because there are some many different kinds of assets out there and the rules address them on a type by type basis. The most common exemptions are set forth here: The main regulations for the Department of Health Services that govern this are found here and here. More legal sources are found here. These primary sources, alas, aren't organized in a very user friendly way. In part, this is because the Medicaid Rules incorporate by reference (with modifications) the rules for the Aid To Families With Dependent Children (AFDC) and Supplemental Security Income (SSI) rules, rather than restating them with the modifications include in full. So the chart on the form is assembled from a mishmash of state and federal regulations in multiple locations. I didn't find a chapter and verse citation for a few kinds of non-countable assets but know they exist from continuing education classes and practicing in the area. | Generally a person can leave money to any person or organization that the testator pleases. In some US states, a minimum portion must be left to family (spouse and/or children). Aside from that, there is no requirement and no exclusions. US law prohibits gifts (and other support) to a few specific organizations which the government has officially listed as terrorist, and I suspect the Taliban is one of these. Gifts by will would be covered by this law just as gifts from a living person. But if a living person in the US can lawfully make a gift to an organization, a similar gift may be left by will. Even if a particular bequest was unlawful, that would not make the will as a whole invalid. Edit: It seems that the Afghan Taliban is not on the list of terrorist organizations maintained by the US, and so there would be no bar to a US citizen leaving money to that group. There would be to groups actually on the list. The general principle above holds. | A company can mandate getting a flu shot as a condition of employment. The government can do the same (for its employees) – Washington state has done so at least for covid. Some individuals qualify for a disability accommodation, so they would be exceptions (e.g. they could be moved to working away from the public). A sincere religious conviction also gives rise to a religious-accommodation exemption. This guidance addresses the question of what constitutes a sincerely held religious belief. | Yes. The term for this situation is a "civil dispute." It can be resolved via a civil claim. In New Jersey, for claims under $3000, you can use the Small Claims courts. The process is designed to be followed without the assistance of counsel. Let the internet be your guide. | New Jersey is not a community property state, but it is an equitable distribution state. This means that in a divorce marital property is divided, not automatically 50-50, but in a way that seems financially fair to the supervising judge, or according to an agreement entered into by both spouses. This also means that the state considers a car bought during the course of the marriage "marital property". There are also special rules for property bought before May 28 1980, which do not seem to apply in the case in the question. However, "marital property" mostly applies when a marriage ends which the question says is not in view here. NJ does allow for a car to be titled to only one, or to both. A title with both names may read "John Doe OR Mary Doe" or "John Doe AND Mary Doe". In the AND case both spouses must sign to sell or borrow against the car, in the OR case either signature will do. If only one name is on the title, that person must sign to sell or borrow. If it comes down to a dispute, the person whose name is on the title can decide where it is to be garaged, and who has permission to drive it. If the "sporty" car is in the name of both parents, either could move it to some other location, and either could move it back. Going back and forth could easily get ugly. If both names are on the 'sporty' car's title with an OR, the husband could sell it without consulting the wife. if there is an AND he would need her to agree. If the older car is in the husband's name alone, he could deny the wife or the son the right to drive it. The wife could, of course, buy a different older (used) car and allow the son to use it. Obviously it would be a good idea if the husband and wife came to a voluntary agreement about all this, but no law requires them to do so. | No. This is governed by the HIPAA Security Rule which was a regulation that the HIPAA statute required the Department of Health and Human Services to adopt. The Rule does require someone covered by HIPAA to have a "Business Associate Agreement" (BAA) and a Service Level Agreement (SLA) with any cloud storage provider (which would be the usual way that a U.S. health care provider subject to HIPAA would have a foreign server), but the Rule does not require that a server be physically located in the United States. The lack of this requirement is a good one, because when you are transmitting data (which the Security Rule requires be done in a secure fashion), you can't know which servers the information will end up on in a trip from source to destination. Email and all other Internet content travels through what amounts to a pony express. It goes through a variety in intermediate server nodes which can change during the course of a session, and generally speaking, you never know which intermediate nodes are used. You could be seeing this answer via a server in China, for example, and you would never know it. | "No fault" is a term of art in this case. In a "no fault" insurance regime, such as the one in place in Utah, minor car accidents are covered by the insurance company of the person who suffers the damage, and not by the person who is at fault in the accident. Utah's "No-Fault" Insurance System Utah is a "no-fault" car insurance state. This means that when a car accident occurs, the people injured in the crash turn to their own insurance coverage first (and sometimes exclusively), filing what is known as a "first-party" claim. This insurance is required to pay at least $3,000 in Personal Injury Protection (PIP) benefits, regardless of who was at fault for the accident. For minor accidents, that may be the extent of the process -- an injured person receiving a settlement from their own car insurance carrier. Because Utah is a no-fault state, its laws limit the situations in which people injured in car accidents can step outside the no-fault rules and file a liability claim or lawsuit seeking compensation from others who may have caused the accident. Before filing a lawsuit after a car accident in Utah, an injured person must first have incurred $3,000 in medical expenses stemming from the accident, or must have suffered certain kinds of serious injuries as a result of the accident. In Utah, the kinds of injuries that qualify under this "injury threshold" are: - permament disability - permanent impairment - permanent disfigurement, or - dismemberment Without knowing more details about the damages suffered and the terms of the respective policies, it is hard to determine if your claim is or is not beyond the threshold where private lawsuits are allowed. It could be that property damage is not covered by "no fault" at all, or that it could be covered by "no fault" but that you have waived that coverage. If this is a case where private lawsuits are allowed, someone who is injured would hire a private personal injury lawyer, unaffiliated with their insurance company, to sue the person at fault in the accident to recover the damages not covered by your no fault coverage due to the other driver's fault. This would not be the responsibility of your insurance company, unless you have uninsured motorist coverage and the other driver was uninsured, which does not seem to be the case. In non-no fault states and in cases in a no fault state where a lawsuit is allowed, your insurance company (after paying any PIP benefits) would not be involved and cannot help you sue the other driver. If you sue the other driver, the other driver's insurance company will hire a lawyer to defend him and would have authority to settle the case up to the policy limits of the other driver's insurance policy. The insurance company has a duty to affirmatively help you obtain the rights you are entitled to under your policy and if they fail to do so this is called a "bad faith breach of insurance contract". But, they are not obligated to help you with respect to harm not covered by your policy. | As noted in your update, Cal. Civ. Code section 1947.3 says (a) (1) Except as provided in paragraph (2), a landlord or a landlord's agent shall allow a tenant to pay rent and deposit of security by at least one form of payment that is neither cash nor electronic funds transfer. Paragraph 2 related to cases of recent bounced checks, and it sounds like you don't have that problem. From the personal finance angle, if you liked the convenience of the online service but don't trust the new ACH agent, your bank may have an "online bill pay" service where they can withdraw money at a designated time each month and send it. Chase has such a service, no charge, they do an electronic transfer if the payee accepts them and otherwise mail a paper check. |
How to cite a supreme court opinion in author-year format I'm citing the U.S. Supreme Court opinion Brown v Board of Education 347 U.S. 483 in an academic article that uses author-year in text citations. Hence I must deviate from the Bluebook style and unfortunately am completely unaware of best practices here. For the year, I will simply use 1954, the date of the official report. Determining which author to use seems to pose a more difficult problem. Which author should I use? The justice who wrote the opinion? Currently I'm using "USSC". | First of all, if the publication or outlet for which you are writing has a specific style guide, and that has a rule for citing court opinions, follow it. If there is no such guide, or no such rule in the guide, my advice is not to try to shoehorn as court opinion into author/date format at all. Instead use a normal legal citation. I would cite that case as simply: "Brown v Board of Education 347 U.S. 483" This UPresearch page says: The Chicago Manual of Style, like both MLA and APA, defers to The Bluebook for legal citations. Legal publications only need to be cited in the notes, not the bibliography (unless you have a secondary publication, like a book in which the legal publication appears, in which case CMOS takes over). See CMOS 14.288 Cases or court decisions—basic elements; CMOIS 14.289 United States Supreme Court decisions; CMOS 14.291 State- and local-court decisions; and CMOS 14.290 Lower federal-court decisions This page from Ely Library says: REFERENCE LIST ENTRY Basic Format Name v. Name, Volume Source Page (Date). Note: The volume and page numbers refer to U.S. Reports. All reporting services include this information. Ignore the "Cite As" at the head of the page in Supreme Court Reporter, because this form of the citation is not used in APA style. Example United States v. Lane, 474 U.S. 438 (1986). If you are referring to specific pages of a decision, use this... Name v. Name, Volume Source First Page, Specific pg(s) (Date). TEXT CITATION Basic Form Name v. Name (Year) (Name v. Name, Year) Examples The Supreme Court has held in United States v. Lane (1986) that misjoinder under Rule 8(b) is subject to harmless-error analysis. The Supreme Court has held that misjoinder under Rule 8(b) is subject to harmless-error analysis (United States v. Lane, 1986). The page "Chicago Citation Style Guide: Legal and Public Documents" from ISRC Librarys says: Material Type Footnote/Endnote Bibliography U.S. Supreme Court decisions Pleasant Grove City v. Summum, 555 U.S. 460, 465 (2009). Court cases are not included in the Bibliography. Other courts decisions Jackson v. Florida, No. SC18-1531 (Fla. June 13, 2019). Court cases are not included in the Bibliography. Constitutions U.S. Const. amend. XIX. Public documents are not included in the Bibliography. Laws and statutes Border Tunnel Prevention Act of 2012, Pub. L. No. 112-127, 126 Stat. 370 (2012). Laws and statutes are not included in the Bibliography. Government documents U.S. Citizenship and Immigration Services, A Guide to Naturalization (Nov. 2016), 10. https://www.uscis.gov/sites/default/files/files/article/M-476.pdf. U.S. Citizenship and Immigration Services. A Guide to Naturalization. Nov. 2016. https://www.uscis.gov/sites/default/files/files/article/M-476.pdf. | "Educational use" does not get a free pass on the law against circumventing copy-protection. First, "educational use" is extremely broad and could include "to post on Stackexchange", or "so that I can learn something". The cited clause specifically limits this exception to "A nonprofit library, archives, or educational institution" – the library must be nonprofit, and the archive or educational institution may also need to be nonprofit (until the courts fix the ambiguity in the scope of "nonprofit"). Second, the circumvention has to be very limited: the purpose must be only to evaluate the work, to see if you want to legally acquire it. So a nonprofit library can peek into a work to see if they want to buy a copy, but you may not. The only thing the library can do is evaluate the work for legal acquisition, and they have to get rid of the pirated copy once they've made the decision. Additionally (other parts of the subsection say), they can't do this is there is an equivalent legal copy available (e.g. if there's a print book available, they can't hack into the e-book to "determine" whether they want the book), and w.r.t. libraries and archives they must be open to the public. | It is possible: McCleary v. Washington is an example. Ground zero was the 2012 ruling McCleary v. State, 173 Wn.2d 477, which then took 6 years of further scuffling to resolve. That opinion is full of useful legal tidbits, but the argument boils down to a constitutional obligation (art. IX) for the state to provide an education. If your state has no constitutional provision mandating that the state provide an education, you may be out of luck. I should point out, though, that the issue reduced to funding and not content / method: that the state used to use a "local pots of gold" model rather that a "big pot of gold" model, and even then came up short of the funds required to do what they were supposed to do. The "argument" was, simply, "We can't can't agree on an affordable means of implementing this system", and subject matter or instructional methods were not debated. A lawsuit will be completely ineffective over a dispute about best methods. Since at least in Washington, school policy is set by an elected set of school officials, the only solution is to pick better individuals next time. Recall is not an option, except in the case of misfeasance or malfeasance – improper acts, not errors of judgment. But I would not totally discount the skills of a clever attorney to make the case that so-and-so is a violation of a constitutional duty, depending on what your constitution demands w.r.t. education. The constitutional provisions of Washington vs. California are significant. In Washington, It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex. and the Supreme court found that The State has not complied with its article IX, section 1 duty to make ample provision for the education of all children in Washington. Most of the education article is about the funding obligation, which is the legal point on which the Legislature was held in contempt. The California Constitution imposes a weaker duty on the legislature: A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement. The vast majority of the constitutional provisions in California are about electing and paying administrators, so there is little basis for arguing that a California school district has not encouraged such improvements. There is no "quality" requirement, just a desideratum to encourage improvement. | Background I will note that the case you cite was decided in 1972 and has been cited by other cases that relied on its precedents in all appellate decisions in Michigan, and one federal trial court decision in Michigan over the last 44 years. The losing party tried to appeal the decision to the U.S. Supreme Court, but the U.S. Supreme Court dismissed the appeal later in 1972 because there was no issue of federal law involved. Ultimate Conclusion There is pretty much no way to change the holding of that decision other than to amend the provisions of the Michigan Constitution in question by the procedures set forth in the Michigan State Constitution. Indeed, the basic premise of your question, "a long-standing Michigan Supreme Court ruling might possibly be incorrect" is basically definitionally wrong. When the Michigan Supreme Court interprets a provision of the Michigan State Constitution, its decision is, by definition, the correct interpretation of that language. It isn't terribly uncommon for authoritative court decisions to conclude for a variety of reasons that the literal plain reading of constitutional text actually means something quite different than what the words actually say. For example, the judicially interpeted meaning of the 11th Amendment to the United States Constitution (which is that states are entitled to sovereign immunity unless it is waived by the state or authorized by the United States or another state) is quite different from what the wording of the amendment says ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."), which on its face simply slightly narrows federal court jurisdiction and says nothing on its face about sovereign immunity. What you think those words should mean based upon a plain reading of the constitutional text is completely irrelevant. Amending Michigan's State Constitution Amending the state constitution is not easy in Michigan. It has been done only eight times since the current state constitution was adopted in 1963 - seven times pursuant to proposals made by the state legislature and ratified by the voters, and once in 1972 as a result of a citizens petition. It has been amended only twice since 1972. Several methods can be employed to propose and ratify amendments. Section 1 of Article XII states that: Amendments to this constitution may be proposed in the senate or house of representatives. Proposed amendments agreed to by two-thirds of the members elected to and serving in each house on a vote with the names and vote of those voting entered in the respective journals shall be submitted, not less than 60 days thereafter, to the electors at the next general election or special election as the legislature shall direct. If a majority of electors voting on a proposed amendment approve the same, it shall become part of the constitution and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. This is the easiest way to amend the state constitution if there is a bipartisan consensus to amend it. Section 2 of Article XII says: Amendments may be proposed to this constitution by petition of the registered electors of this state. Every petition shall include the full text of the proposed amendment, and be signed by registered electors of the state equal in number to at least 10 percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected. Such petitions shall be filed with the person authorized by law to receive the same at least 120 days before the election at which the proposed amendment is to be voted upon. Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law. The person authorized by law to receive such petition shall upon its receipt determine, as provided by law, the validity and sufficiency of the signatures on the petition, and make an official announcement thereof at least 60 days prior to the election at which the proposed amendment is to be voted upon. Any amendment proposed by such petition shall be submitted, not less than 120 days after it was filed, to the electors at the next general election. Such proposed amendment, existing provisions of the constitution which would be altered or abrogated thereby, and the question as it shall appear on the ballot shall be published in full as provided by law. Copies of such publication shall be posted in each polling place and furnished to news media as provided by law. The ballot to be used in such election shall contain a statement of the purpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of purpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment. If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. If two or more amendments approved by the electors at the same election conflict, that amendment receiving the highest affirmative vote shall prevail. There were 3,156,531 votes cast for all candidates in the most recent election for Governor in Michigan in 2014. This means that 315,653 valid signatures would have to be on a petition requesting a constitutional amendment and experience in states where initiatives are common suggest that significantly more signatures than that would have to be collected in order to get that many valid signatures. Section 3 of Article XII says: At the general election to be held in the year 1978, and in each 16th year thereafter and at such times as may be provided by law, the question of a general revision of the constitution shall be submitted to the electors of the state. If a majority of the electors voting on the question decide in favor of a convention for such purpose, at an election to be held not later than six months after the proposal was certified as approved, the electors of each representative district as then organized shall elect one delegate and the electors of each senatorial district as then organized shall elect one delegate at a partisan election. The delegates so elected shall convene at the seat of government on the first Tuesday in October next succeeding such election or at an earlier date if provided by law. The convention shall choose its own officers, determine the rules of its proceedings and judge the qualifications, elections and returns of its members. To fill a vacancy in the office of any delegate, the governor shall appoint a qualified resident of the same district who shall be a member of the same party as the delegate vacating the office. The convention shall have power to appoint such officers, employees and assistants as it deems necessary and to fix their compensation; to provide for the printing and distribution of its documents, journals and proceedings; to explain and disseminate information about the proposed constitution and to complete the business of the convention in an orderly manner. Each delegate shall receive for his services compensation provided by law. No proposed constitution or amendment adopted by such convention shall be submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all the delegates elected to and serving in the convention, with the names and vote of those voting entered in the journal. Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in the manner and at the time provided by such convention not less than 90 days after final adjournment of the convention. Upon the approval of such constitution or amendments by a majority of the qualified electors voting thereon the constitution or amendments shall take effect as provided by the convention The next referendum pursuant to Section 3, Article XII is in the year 2026, and any proposed amendments from a constitutional convention called under that provision would not take effect until approved by voters which could happen no sooner than the year 2028. Voters declined to call for a constitutional convention in the years 1978, 1994 and 2010. No Law Pased Only By The Legislature Can Overrule This Decision The state legislature can't pass an ordinary law that overrules a Michigan Supreme Court interpretation of the state constitution either. And, even Congress can't pass a law that reinterprets language in a particular state's constitution that has been determined to be the correct one by the state supreme court. No Other Court Can Overrule This Michigan Supreme Court Decision The federal courts including the U.S. Supreme Court cannot overrule the Michigan Supreme Court on a question of Michigan state law. The lower courts of Michigan cannot overrule the Michigan Supreme Court on any question. The Michigan Supreme Court Is Extremely Unlikely To Modify This Decision The Michigan Supreme Court is extremely unlikely to overrule itself regarding a decision that has stood and been relied upon for 44 years since questions of statutory interpretation are usually given unusually strong respect as precedents to promote certainty, although it could change its mind if it wanted to. Usually, though, a state supreme court only overrules one of its own past precedents if it becomes inconsistent with another line of cases and it eventually becomes clear that there are two or more inconsistent lines of precedents can't be reconciled with each other in some fact pattern that pits one line of cases squarely against another. For example, in Colorado, earlier this year a older case holding that a defense called "laches" could not be used in child support cases collided directly with a newer Colorado Supreme Court case involving promissory notes that held that the defense called "laches" is available in every type of case in Colorado. When confronted with the conflicting precedents in a new case this year the Colorado Supreme Court resolved the conflict in favor of the newer holding, overruling the older one which states that "laches" did not apply to child support cases. But, this is extremely unlikely to happen when the question involves the meaning of the precise wording of a highly technical property tax provision of the state constitution. | Courts look to primary authority first, and then to secondary authority if ambiguity remains. Primary Authority providing definition for the legal use of a word would be previous case opinions that give meaning to a word in a given context, how the word is actually defined in the statutes for the state, or, in the case of federal law, the federal statutes or Code of Federal Regulations. Within primary sources, you also consider whether a prior definition is binding on the court (i.e., the court has to follow it) or whether it is merely persuasive authority (that the court can choose to follow, but is not required to follow based on precedent – sometimes call Stare Decisis). Primary authority is binding on a court if the definition comes from a higher court in the direct appellate chain of the deciding court, it is persuasive otherwise. Secondary Authority is everything else. For example, Black's Law Dictionary, Whigmore on Evidence, or any other legal treatise would also be a secondary source. (All secondary authority is persuasive authority.) Courts, in absence of either, will look to how a word is commonly used in the context in which it is applied. All seek to give the proper meaning to a word or phrase in light of how it is being used. | This falls within the penumbra of Feist v. Rural Telephone. The principle articulated there is that facts are not subject to copyright protection, but the expression of facts can be. Quoting from the ruling, "no author may copyright his ideas or the facts he narrates...however, it is beyond dispute that compilations of facts are within the subject matter of copyright". The distinction between protected vs. not protected hinges on originality: "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author". But it is not sufficient that the work is created by the "sweat of the brow" of an author: it must possess at least some minimal degree of creativity. Thus "[t]he writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like". As a concrete example, the ruling states "Census-takers, for example, do not 'create' the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them...Census data therefore do not trigger copyright because these data are not 'original' in the constitutional sense." But, compilations of facts can be protected: Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws An email list requires nothing more than brow-sweat, and even then, not much. A cleverly annotated and arranged email list would involve substantial creativity and would be subject to protection. That does not mean that you didn't sign some agreement that prohibits you from copying or using the list, but it isn't a matter of copyright. | Law doesn't have a monopoly on bad writing. Steven Pinker, in "Sense of Style" and other articles, says that the kind of poor writing you mention is a symptom of the "curse of knowledge". Justice Kagan believes that good legal writing needs to at least be good writing, and law schools aren't doing enough to teach that. All the other Justices expressed similar opinions to that in interviews with Bryan Garner. | 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. |
Why are ink signatures considered trustworthy? Inspired by the other currently trending signature question. The world over signatures are used to tie identities and consent to documents. Signing something means you accept it and it becomes legally binding. However if signatures are to have more than a symbolic meaning, they must be verifiable. Otherwise I can always claim that I didn't really sign that document when it becomes convenient for me. But how can this be done with any degree of confidence? It feels to me like signatures could be faked too easily, and the process for verifying them is more art than science (as far as I understand it, it just involves a supposed "expert" looking at them and judging how "similar" it is to some other example). So, why are they used everywhere? | TL;DR: You have to do something to accept a document; a signature is often used because it is simple and permanent; signature alone is often not enough (e.g. wills); claiming a false signature annuls the contract for both parties and you cannot keep the accrued benefits. Signing something means you accept it and it becomes legally binding. Many things can become binding without signature (including your usage of this website) and signatures alone are not considered trustworthy in many circumstances. Important documents (e.g. wills, marriages, real estate transactions) in many jurisdictions require a public official (notaries, marriage commissioners etc.) or a trustworthy person (lawyers, doctors, professional engineers, etc.), who will often require rigourous identification documents, and/or witnesses to be involved for the documents to be legally effective. Some high-value commercial transactions will also involve witnesses for signature, or require witnesses for executions of certain articles. Otherwise I can always claim that I didn't really sign that document when it becomes convenient for me. You can and people do. Then the parties go to court or other dispute resolution mechanism, and the judge will consider all relevant evidences to decide (often on a balance of probabilities, i.e. more likely than not) if you consented to a document. Particularly, "when it becomes convenient for me" is often after some elements of the contract having been executed, which is evidence in favour of the existence of the contract and nonexistence of a contract removes obligations and rights for both supposed parties, as such the executed part could be undone. If for a sales contract the other party has sent you a computer, you cannot claim that you did not sign that contract and keep the computer they sent. Without the contract, the computer is not rightfully yours. Also, claiming false statements for benefit or under oath is fraud/perjury and can be criminally prosecuted. So, why are they used everywhere? You have to do something to affirm your consent to a document. It is symbolic but symbolic does not mean meaningless and a symbol of your consent is often desirable. A signature is simple and: affirmative of your intention, unlike a simple visual inspection of document (perhaps eventually someone will argue your eye movement can be used, e.g. for VR) permanent, unlike oral declarations (which can still be legally valid, even if hard to prove)1 which is enough for most purposes. As a bonus, it is also somewhat unique and can be compared to certain extent. For purposes demanding higher level of confidence, ID documents can be demanded and more complex procedures (e.g. with notaries and witnesses) can be undertaken. Of course, you could make an audio recording for oral declarations, but audio recorders were not commonly available and it would be too complicated if the entire contract is not read aloud in that recording. | What is the lawful implication of text enclosed within a (stroked) text box in a document? I have heard this means this text is left out of the contract, or possibly adds an exception to it. You are mistaken. The boxed language means that the notary public who authenticates the document has liability only if an imposter signs the contract, not for anything else in the contract. The liability of the person signing the contract is not affected by the boxed language. For example, suppose that someone purporting to be Fred signs an affidavit of Fred in a real estate transaction that falsely states that the real estate is free of toxic waste when the person signing it knows that it is actually a toxic waste burial site. If the affidavit that Martin, a notary public, notarizes is actually signed by Jane, then Martin and Jane both have liability to anyone harmed by the fact that the buyer in the real estate transaction believed that the affidavit was signed by Fred when it was not. But, if the affidavit is actually signed by Fred, then Fred may have liability to someone harmed by the fact that the affidavit was false, but Martin will not have liability for notarizing Fred's signature. This is the default rule of U.S. law in any case, so the boxed language doesn't actually have any legal effect. The boxed language is probably present to alert people, such as people from Latin America or Europe, who are familiar with a legal regime in which a notary public has a more expansive set of responsibilities than a notary public does in the U.S. | The standard of care to determine documents are accurate varies. For example, in an ordinary notarized document, notarizing the signature of an imposter will ordinarily only impose liability on the notary for harm caused by the fraudulent imposter signing, if the notary is negligent, i.e. fails to use the reasonable care of a similarly situated notary. But, suppose that instead of a notary, the imposter uses a fake ID to get a bank to confirm his identity as part of a "guaranteed signature", which is a parallel system of confirming people's identities arising from an industry organization and mostly used to confirm identity in life insurance payouts and other non-probate transfers (e.g. pay on death bank accounts). In the bank that guarantees the signature is duped, the bank has strict liability without regard to fault to the party that is harmed by the imposter's bad signature. In the case of fake signatures on checks, there is an elaborate web of statutes in Articles 3 and 4 of the Uniform Commercial Code and some related federal regulations, but basically, it boils down to the harm from a forged check falling on the person who dealt most closely with the imposter. The standard for a Fake IDs used to get alcohol is particularly tricky because rather than flowing from a common law rule, it usually depends upon the exact language of a liquor regulation statute and related regulations, so it is often non-uniform. There is not a general rule governing this situation and that situation is very common in American law. More often than not, you can not determine the correct answer to a legal question by simply applying a general rule to a new situation. Law is not physics. | Copyright The © copyright symbol (or equivalently the word "copyright" or the abbreviation "copyr", the actual symbol does not have to be used and is an abbreviation itself, or ℗ for a sound recording copyright) is used exclusively to claim copyright for yourself. If the copyright holder fails to do so, the copyright holder loses certain rights. Specifically, notice makes it much harder for a defendant to establish that that the alleged infringer-defendant is an "innocent infringer" and thereby is subject to a much lower minimum on statutory damages. Trademarks and Service Marks A trademark holder also secures certain rights by putting people on notice of the existence of a claim of trademark with the appropriate symbol (® if it is registered trademark or service mark, and tm for trademark or sm for service mark, if it is not a principle register mark under the Lanham Act). The various trademark symbols when used by a third party are being used in a circumstance when the third party isn't using it to sell the trademarked good in a manner that acknowledges that the trademark belongs to someone else and is protected in much the same way that an academic might footnote an idea or quotation to attribute that idea or quotation to someone else. Aside from the academic/journalistic honesty idea of acknowledging and attributing something that is not yours to someone else, it could also protect you from a trademark dilution lawsuit. If a trademark is used without attribution as a generic term for everything in the same class of goods that the goods sold under the trademark belongs to, it will become diluted and come to have only the general meaning of something belonging to that class of goods and not the specific secondary meaning associated with a trademark of a particular good within that class which is sold by the trademark owner. For example, if everyone started using the word "Nike" without a trademark symbol to refer to running shoes even if they weren't made by the Nike company, the trademark "Nike" would become diluted and no longer be protected by the law. But, the Nike company can nip that process in the bud by bringing anti-dilution suits against people who use the term in the general sense rather than to refer only to goods made by them. When you acknowledge with a trademark symbol that the right to use the name to sell goods is limited to them selling their goods, you are weakening the case that someone who wanted to bring an anti-dilution suit against you would have and clarifying that you are using it to refer to their goods (which is proper) rather than to sell goods which are not theirs (which is improper). | I think the officer is probably lying, not just mistaken, but they are not required to always be truthful. In addition to the law against possessing ID with intent to commit, or to aid or abet, any crime, it is also against the law to be knowingly in possession of a stolen credit card, or any other property. An example of a strict-liability possession crime, which the officer knows of, is that it is a crime to possess heroin, period. I am skeptical that the officer actually believes that there is a law making it a crime to be in possession of a credit card with permission, and suspect that he thinks it is stolen. | "Acknowledged" is fine. There is no "preferable" substitute with which to prefix your signature. As a precaution, never leave too much space between the end of clauses and your signature, lest another clause later on gets slid in without your consent (a public institution is unlikely to incur such misconduct, though). Also, always be sure to ask for a copy of the contract/agreement you sign. | Why is this reply not considered an agreement to sell the company? Because a sender's opportunism regarding the bizarre contents of the autoreply preclude a finding that there is a meeting of the minds. Could someone get out of a contract by proving that their email agreeing to it (e.g., "Yes, I agree to the contract") was an autoreply? It mostly depends on the element of authorization to set up the autoreply that way. If the person who wrote the autoreply was authorized by the user of the email account to set it up that way, the contract binds the user. This form of blind and reckless formation of contracts is an extreme scenario of Restatement (Second) of Contracts at §154(b). The contract might be null and void as unreasonable, contrary to public policy, and/or on other grounds. But a wide range of scenarios would fall short of warranting a nullification of the contract. (Disclaimer: I am affiliated with the linked site.) | In such a case the person who bypasses the terms knows that use of the site is conditioned on agreement to the terms, and has taken an explicit action to continue past the terms and use the site. I suspect that if a dispute were to arise where this is relevant, it would be held that taking such action was legally equivalent to clicking "I agree". But I don't know of any court case on this point, and i can't be sure what a court would do. If having intentionally bypassed the terms, such a person tried to raise his or her lack of consent to the terms as a defense to some obligation imposed by those terms, such equitable concepts as "unclean hands" and estoppel might be raised, since such a person, in effect, leads the other party, the site owner, to believe that s/he has accepted the terms, I suspect that such a person will be treated as having accepted them. If this becomes at all common, I suppose that the designers of such sites will in future store a record of such consent being given, and not allow the user to proceed unless it has been. |
Can I successfully sue a municipal consultant who prejudices a town official against me using false or incompetent advice? Can I successfully sue a municipal consultant who prejudices a town official against me using false or incompetent advice? For example, let's suppose I am a developer and I want planning board approval to develop a parcel. The planning board then hires an engineer to advise concerning my development. Now suppose the engineer then makes recommendations against my development and the planning board then rejects my proposal based on the engineer's recommendations. Now, suppose that the engineer's recommendations are provably incompetent, can I then sue the consultant for harms to my project? By "provably incompetent" I mean that the engineer not only makes false conclusions in his report, but draws conclusions that are outside of his area of competency. For example, suppose in his report the engineer (who is a civil engineer) says things like "the project would cause environmental harms" even though as a civil engineer he is completely unqualified to be making remarks about the environment. Assume for the purpose of the question I can put an expert biologist on the stand that will contradict the engineer and characterize his report as incompetent in regards to its conclusions concerning the biological environment. | No Since you have no contract with the engineer, your only recourse is to sue in the tort of negligence. However, such a suit will fail. The engineer does not owe you a duty of care given their overriding duty to their principal. That is, their duty to their client overrides any theoretical duty they owe to you. The issue might be different if you can prove the engineer acted with malice towards you. Of course, if you can prove that the advice the body relied upon to make their decision was flawed, you might succeed in an appeal against that decision. However, that depends on the scope of the appeal. In common law jurisdictions, appeals are not usually heard de novo; that is, the appellate body does not consider the case from the beginning, they only decide whether the approval body followed the rules in making their decision; not whether that decision was right or wrong. To illustrate: if the law requires that the approval body must consider an engineer's advice it would appear that they have done so and their decision will stand even if the advice was incorrect. Similarly, if the law allows you to make submissions on the advice and you did so, pointing out that the engineer had ballsed up the advice, then, providing the body considered your submission, they are free to decide that they prefer the engineer's advice notwithstanding. Only if they did something they shouldn't have done or didn't do something they should have (based on the record) will they be found to have breached the law. Of course, specific laws can have different requirements in appeals from the common law standard and may allow the review to reconsider various facts but this would need to be spelled out in the statute. The legal rationale for this limitation is that the legislature has decided that the approval body is the administrative decision-maker and it is not for the court to substitute their own decision instead. If the decision-maker decided the matter in accordance with the law, they are entitled to have made the "wrong" decision. The recent Novak Djokovic cases in Australia illustrate this: the courts inquiry was limited to if the administration had followed the law, not on if the decisions were correct. | Is it acceptable for person A (representing themselves) to refer to person B as "their neighbor" instead of by their name, or would that cause the suit to be dismissed? Omitting the neighbor's name in the pleadings & proceedings cannot singlehandedly cause the dismissal of a defamation suit. The matter would result in dismissal only if the plaintiff repeatedly disobeys court order(s) (if any) to disclose that information. Before the proceedings get to that point, the plaintiff will have had one or more hearings to dispute the defendant's alleged need for identifying a non-party by name. When opposing to that disclosure, the plaintiff's goal is to establish that the false narrative about robbing a neighbor at gunpoint is defamatory regardless of neighbor's name. Keep in mind that the focus in a claim of defamation is the defamed person, whereas the relevance of details such as who the non-parties are pertains to context and evidence. Lastly, the fact that a party to the suit is a pro se litigant is irrelevant from both substantial and procedural standpoints. | There are two cases to consider. If there is some evidence that the city intends to enforce the ordinance, then the business can go to court for an injunction preventing the city from doing so, if they can show that such enforcement would harm them (e.g. by making them impose a records policy they don't want). They don't have to risk arrest by actually violating the ordinance first. In granting the injunction, the court would likely rule that this particular ordinance is unconstitutional, which seems to be the "voiding" that you're looking for. If the city shows no signs of wanting to enforce the ordinance (e.g. they are well aware that it is unconstitutional and not legally enforceable), then a request for an injunction would likely be dismissed as not ripe. Courts do not want to waste their time on cases where there is no real dispute between the parties, or on issuing orders for an entity not to do something that they weren't going to do anyway. It's understandable that the business might wish for an explicit ruling anwyay, in case they fear that the city will change its mind tomorrow and start cracking down, but unfortunately for them, courts do not agree that this is worth doing. Note in either case the ordinance will remain on the books until such time as the town council (or other relevant legislative body) should vote to repeal it. Courts have no power to make that happen, no matter how unconstitutional the ordinance might be. So the business might find it more effective to petition the council for a repeal. | Repeating a defamatory statement is itself defamatory This is known as the repetition rule and is illustrated in Brown v Bower & Another [2017] EWHC 2637 (QB). In essence, the "local news site" is responsible for the reputational damage suffered by their publication and you are responsible for the damage caused by your amplification of that publication. So if the local news article was seen by a few dozen people locally, the damages might be relatively modest. If your publication caused it to be seen by millions of people and caused nationwide or worldwide damage to the person's reputation so that they are at risk of losing income or opportunities in the future, the damages can be vast. How you shared it is important. If you endorsed it, which includes forwarding it without commentary, then it is likely defamatory. If you were more circumspect and said something that shows an open mind to the allegations like "This is an interesting story, I can't wait to see how it plays out", then it's likely not defamatory. Of course, if the allegations are true then you have nothing to worry about; truth is a complete defence to defamation. You can prove that they are true, right? I mean with real evidence like a conviction for fraud. Or, at the very least, pending or actual charges from the police. Or, failing that you have good evidence that you yourself have been scammed specifically by this person. Or that you have had people who have been scammed tell you personally exactly how it happened? No? Well, I wouldn't count on a truth defence if I were you. | Bob has to sue in a court of competent jurisdiction To enliven jurisdiction, there has to be some connection between the parties or the event and the jurisdiction. Since Bob, the manufacturer and (presumably) the harmful incident all took place in County X, of State Y or Country A then they are the only jurisdictions that might be competent. The courts of County Z, State M or Country B are all going to say "not my problem". For the USA, there are only State courts and Federal courts. States may have courts that are called county courts but they are enlivened by the state sovereign - counties and cites are self-governing administrative districts, not sovereign states. Federal courts have jurisdiction where the subject matter is about a Federal Statute, the Constitution or a treaty. This dispute would appear to be based on tort or contract law which is a state matter. Federal courts can have jurisdiction if the parties are in different states and the amount in dispute is more than $75,000. This would not appear to be the case. So, as a state matter, the plaintiff can bring the case to any competent court. The defendant can apply to have it moved to a more convenient court. Arguments will be heard and, at some cost, you'll probably end up where you should have started. | I'm not familiar with the lawsuit, but generally speaking, a court's finding that a lawyer falsified evidence would not directly result in the lawyer being disbarred, as the trial court does not have authority to regulate the practice of law. Instead, a court that reached that conclusion -- either by a verdict, or because a judge was persuaded by the evidence without reaching a verdict -- would likely report that outcome to whatever organization is responsible for licensing attorneys in that jurisdiction. | Short Answers Does the Coroner have the final say on cause of death? No. The trial judge (or jury) has the final say. Can police pursue an investigation independent and contrary to that of the Coroner? Theoretically, yes. But I would expect that would happen only in unusual circumstances. Like, maybe an internal investigation. Standard procedure is for the prosecutor, police and medical examiner to work together to investigate crimes and prosecute criminals. Does a District Attorney (when not the Coroner) have the means and/or authority to conduct an independent and contrary investigation? Yes. But it's unusual. See answer to number 2. Or do any other offices have the right to investigate a death to look for evidence of homicide in opposition to a verdict of the Coroner? Same answer as #2 and #3. Explanation They work together on the same team The medical examiner is a state employee and usually works on the side of law enforcement. If a medical examiner were to report a cause of death that did not support evidence of a crime, that information would have to be made available to any potential defendant. In the hands of any competent attorney that should be sufficient basis to create reasonable doubt and achieve an acquittal. I doubt many prosecutors would ever consider hiring an outside examiner in this case except under highly unusual circumstances like an internal investigation as mentioned above. The defendant must create reasonable doubt In the alternative scenario, when evidence of a crime is supported by the M.E. report, it would be up to the defendant to produce reasonable doubt by cross-examination or producing expert testimony that contradicts the M.E.'s conclusion. This might or might not include hiring an independent third party forensic pathologist as an expert witness. Dr. Cyril Wecht is a famous one. All opinions are subject to error, disagreement and cross-examination All that said, the "cause of death" reported by the Coroner is just a medical opinion and is subject to error and disagreement like any other opinion. It's just that it's unlikely that disagreement would come from the side of law enforcement in most cases. For further reading, here is a link to the Coroner's Handbook. At the bottom of page 11, it acknowledges: Causes of death on the death certificate represent a medical opinion that might vary among individual medical-legal officers. | Now the party in question is threatening to sue (but of course refuses to point to which sections he believes are libelous) ... do we have to pay the $$ to "lawyer up" if we want to be safe? If you get sued, you will definitely want a lawyer. If you don't get sued, well, in that case you're safe. So your first question is whether the supposedly aggrieved party will actually sue. Your second question is, if they sue, do they have a good case? That question will be useful in deciding whether to settle. If the threats are empty then you might want to hire a lawyer to call their bluff. Otherwise you may have to endure the continual empty threats. This is especially true if the libel case is weak. Your lawyer can write a letter that explains why there is no case. If they do sue, they will have to identify the specific libelous statements, so you will at that point be able to refute the claims. But you'll also want a lawyer at that point, so you won't have to be directly concerned with the details; your lawyer will take care of them. As suggested in a comment, do keep in mind that a true statement cannot be libelous, by definition. To the extent that you can prove that every statement in the piece is true then you don't have much to worry about. But even then you'll want a lawyer's advice, because even if you know yourself that everything is true, you don't know what it will take to prove that in court. (Another aspect of the element of falsity is that statements of opinion are generally not defamatory.) To learn for yourself about the elements of libel you can start with Wikipedia or a bit of internet searching. To get a thorough analysis of the facts of your case in light of the laws of the relevant jurisdictions, you will need to engage a lawyer. It might not cost as much as you fear. |
Is code on Github safe against US claims? I run a smaller non-US company producing hardware-related code. Since the code is hardware related I might patent it (the entire system) outside US at some time. I want to use Github to store my code because I believe it's better protected against hacking there as opposed to self-host the repository (ransomware). Could a counterparty file a case to a US court and ask the source code of my invention because the hosting company (Microsoft) is US-based? If that would happen, would I get informed? I ask this because defending in US would be much more expensive considered the high salary level there and the translation costs and eventually travel costs. The company is not planning to be active in the US. | There are a tangle of issues going on in this question. First, distribution of hardware-related code in commerce might very well void any right you have to patent the software and might bring it into the public domain for purposes of patent law. Publicly disclosed inventions, even if protected by copyright, are part of the "prior art" and can't be protected by patents. Second, you have to disclose the material ideas in an invention in order to patent it, in your patent application. The bargain of a patent is that you get protection for about two decades in exchange for contributing your idea to the public domain when it expires. Third, usually people protect software with copyright rather than patent, although there are pros and cons to each approach. Fourth, if someone knows enough about your invention to subpoena the place where you store it, you have probably disclosed too much information pre-application to patent it. Fifth, usually the "real" target of a subpoena gets notice of it and an opportunity to defend against the subpoena (e.g. for improperly disclosing a trade secret) before it is carried out, but the same does not apply, for example, to National Security Letters under the Patriot Act (which are supposed to be used only in national security investigations or counter-terrrorism operations, but might be abused). Certainly, an ordinary person can't issue a National Security Letter for private commercial gain without corrupt government assistance. Sixth, to issue a subpoena, there must be some pending case to which someone can claim the subpoena is relevant. A random person can't just subpoena information because they want to. Seventh, even if a server host isn't based in the United States, that doesn't mean that there isn't some means by which a court might assert subpoena power over information on server host. There are many legal "hooks" that could apply. Eighth, defending an isolated subpoena isn't terribly expensive. Typically, you'd be looking at a legal fee in the $1000 to $5,000 (U.S.) range, which is much, much less than the dollar cost of patenting an invention in any country. In short, while there are pros and cons of using a U.S. based server host, people in the IT industry routinely attach far too much importance to this fact which is only very rarely an important one legally. There are many other issues which are much more important in this fact pattern to your ultimate goal. | You can always get in trouble. Copyright is always protected by the laws of a particular nation, by the courts of that nation. Because of the Berne Convention and the Universal Copyright Convention, I can sue you outside of my country, and will be treated as a person of that country. The conventions don't say who has jurisdiction, that is where you have to sue, so you have to resort to conventional jurisdictional principles. If you are in Europe, under the Brussels Convention, that means I have to sue you in your country of domicile (if you reside in multiple European nations, I get to decide which country to sue you in). The English courts are slightly different in that they generally hold that you sue in the country where the act took place, but (Lucasfilm v Ainsworth) you can sue in UK courts for infringement that occurs in the US. As you can see, this can get complicated. I can't sue you in Mongolian courts (assuming neither of us has any connection at all to Mongolia), but I could sue you (being a hypothetical UK citizen) in UK courts if you did the infringing deed while in Mongolia. Mongolian courts enforce Mongolian copyright law, US courts enforce US copyright law. Therefore you first have to decide what country you plan to sue in (from the plaintiff's perspective). | You will want to speak with a patent attorney, not a labor attorney. Some of the facts you are presenting are entirely wrong. Patents have inventors, copyrights have authors. Inventorship has strict rules. Inventorship cannot be denied without consequence in almost any jurisdiction, but you'll need to get local legal advice. In the US, "A patent is invalid unless it lists the first and true inventor or inventors of the claimed invention." (See Stark v. Advanced Magnetics, 119 F.3d 1551, 1553, 1556 (Fed. Cir. 1997); 35 U.S.C. § 102(f) (“A person shall be entitled to a patent unless . . . he did not himself invent the subject matter sought to be patented). See also 35 U.S.C. §§ 111, 115-16, 256.) Assignment--the "ownership" of the patent--is different. It's very common to have you sign an agreement as a condition of your employment that you grant full assignment to your company for any patentable material created under their employ. If you did not, it is possible that the company would need to give you consideration for the right to assignment, e.g., they would have to pay you something to own the patent. If you are no longer there, that "something" can be substantial, because the patent is invalid without it, and they have little leverage over you. Bring all written records, emails, etc. to a licensed attorney who specializes in patent litigation. | There is something called the exhaustion doctrine that says that once the holder of a patent sells a patented device, they have relinquished control over that particular instance of the patent implementation. Anyone who legally purchases this hardware has the right to run whatever software they want on it, as long the software is otherwise legal (software designed to defeat DRM would be an example of software that is is not legal). | If your own software includes software covered by the GPLv2 (for example by copying source code, or by linking dynamically) then your own software is also covered by the GPLv2, and you will have to provide the source code. This is called a "work based on the Program" on the GPLv2. In this case, however, it seems that your own software does not include software covered by the GPLv2, but you want to put it onto an SD card together with software covered by the GPLv2. That would most likely fall under "mere aggregation of another work", as long as your software and the other software do not interact very closely (such as dynamic linking). To quote the GPLv2: In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License. So in that case the GPLv2 does not cover your program. You will still have to supply the source code for the GPLv2 software on the SD card. This is covered by section 3 of the GPLv2. Basically, you have two options: send along the complete source code for all the software (would be quite bothersome for a complete distro) or provide a written offer to provide the source code on demand to anyone who asks (you may charge for this, but only to cover your cost) GPLv2 contains a third option, but that only applies to non-commercial distribution. Practically speaking, it should be enough to include a README.txt or similar explaining that the SD card contains software covered by GPLv2, and that you will provide the source code on demand for a certain, reasonable fee (say $5 or $10 per CD). In practice, it is unlikely that anyone would ask for this, as the source code can usually be downloaded for free elsewhere, but if someone does ask, you just charge them $5 and send a CD. Of course, to reduce legal risks it may be prudent to contact a lawyer for your jurisdiction, as this is only general advice. | In Canada, no: linking does not reproduce any part of the original. In Sweden, Spain and according to the EU, no: communicating a link does not communicate anew the work to the public. In the US, it isn't as clear, but generally, linking is not per se infringement, usually because no copying happens. | 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. | I've answered this in the context of US patent law, but similar principles apply elsewhere in the world. As stated in 35 USC 271, "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". Thus, a patent provides the patent owner with the right to exclude others from performing these actions, and the right to sue anyone who does perform these actions (both to stop them from infringing the patent, and to collect monetary damages for their infringement). Creating an infringing product and then licensing it under the GPL (or any other scheme) does not change the fact that it infringes a patent. 35 USC 271 also states that "Whoever actively induces infringement of a patent shall be liable as an infringer". This means that, even if the creator of the infringing product does not perform any infringing acts in the US, the act of offering it for free use could be construed as induced infringement of the patent, and they could still be sued for that infringement. |
What is the minimum effort required to validate that a landlord-tenant communication is genuine if it isn't signed? In the state of Washington can tenants disregard written communications from landlords if they are not signed? For example, if 2 printed letters are posted (on different days) notifying of a rent increase and neither contains a signature, can they be treated as pranks if the increases are for different amounts? What is the minimum to require the tenants to inquire whether a communication is genuine? Would a printed byline, such as "management" or a landlord's letterhead on the letter be enough? Clearly, any one of those can be duplicated. Suppose the letters are not delivered by mail, but are posted on the door (as is required for rent-increase letters in WA). Are tenants then required to resolve the confusion? Or is a hand-written signature, or another form of validation, necessary to make the correspondence a legal notice? | As other answers point out, there are some requirements on what must be contained in the notification, but nothing about any particular authentication mechanism. So, the upshot is that, if the notice meets those requirements, and if it did in fact come from the real landlord, then it's effective, and you will be responsible for paying the increased rent without having to be asked again. That is the case even if the notice isn't signed, or isn't on letterhead, or doesn't contain any other particular proof of authenticity. Therefore, you have to judge for yourself whether it is authentic, or whether to take additional steps to verify the document. If you end up guessing that it is fake when it is actually real, you will bear the consequences. It's up to you to make your own cost-benefit analysis, given the circumstances, of the effort involved in verifying the notice, versus the consequences of being wrong. You might for instance decide: "This notice appears so obviously fake that I'm just going to ignore it. There may be a tiny chance that it's actually real, in which case there could be trouble when I don't pay the higher rent. But that chance is so small that it's not worth the effort to contact the landlord and confirm that they didn't send the notice." "This notice appears so obviously authentic that I'm just going to assume that it is, and plan to pay the higher rent when it comes due (or, plan to move out before it would take effect). If it turns out to have been fake, I will have been inconvenienced by paying too much and having to wait for the landlord to refund the balance (or, by moving out unnecessarily). But that chance is so small that it's not worth the effort to contact the landlord and verify that the notice is real." "I am not really sure one way or the other if this notice is real. If I guess either way, the risk of being wrong would be substantial, and the consequences would be unpleasant. So I'm going to contact the landlord to verify it before doing anything else." There are lots of things in the law, as in life, that are like this. You're not guaranteed to be given absolute proof of whether something is true; you have to make up your own mind, and decide how much effort it is worth to make sure you are right. | 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. | All residents in Germany need to have a registered address. The reasons for that are numerous: no need for a separate voting registration, it gives a place to deliver legal notices, it helps enforcing tax regulation (though tax law has another definition of "residence"), certain taxes are assigned to the municipality where you are registered, no need to do a utility bill or credit report dance when trying to prove your address to third-parties, it was always done like that. The last is reason enough as far as bureaucracy is concerned. As far as your question goes, there are a few wrong assumptions. First, nobody is trying to limit or deny registrations. Municipalities actually get money for every resident they have registered through tax allocation. Second, if you (semi-)permanently live at some place you are not considered "officially homeless" but as someone has didn't properly register themselves (which could result in a fine). Third, multiple people can be registered at the same address. How else could people register themselves in huge apartment buildings? Or even a family living together? If there is a suspicious amount of people registered they might want to check whether other regulation (such as minimum space per person) is adhered to. Fourth, to register somewhere you need proof that you actually live there. This is where you probably ran into problems. This proof is usually a letter given by the person allowing you live at a place. Note that this is not necessarily the owner of the place but literally the person allowing you to stay (the authorities can check with the owner though). Often subletters won't sign that piece of paper, either because they think they are not allowed to or they don't have permission by the owner to sublet the place to begin with. If that happens you are supposed to tell that to the authorities (§ 19 Abs. 2 BMG) who then can choose to fine the one providing the place for refusing to sign the paper. (The need for proof was recently reintroduced after it was noticed that there was a huge amount of people who registered at an address where they didn't actually live.) Fifth, if you never have been registered before you can't actually properly pay your taxes as you need a tax ID for that. This is automatically assigned when you – surprise – register for the first time. If you are not an EU/EEA/CH citizen you also need to register yourself before they can change anything about the residence permit within Germany. To end with an answer to your question if taken literally: German citizens can register themselves as homeless (ohne festen Wohnsitz) if they really are. For foreigners this is a bit more complicated. EU citizens usually don't have freedom of movement rights if they can't properly support themselves, a living space is supposed to be part of that. Other foreigners likely violate their residence permit. | If the lease has expired and the tenant does not have an option then the landlord is under no obligation to offer a new lease; they do not have to give any reason. They would still need to comply with the notice periods in the lease or it will revert to a month-by-month contract; in that case, the notice period is 1 month. | It is very unlikely that such a sentence ("A 6 month non-compete/solicitation is required") is enforceable, because it is way too broad. The reasonable interpretation of the sentence is that the employer has thereby put the employee on notice that such an agreement will be required, and the actual terms of that agreement will be spelled out at that time, but that sentence does not constitute an "agreement". Ad actual agreement has to be supported by consideration, and have a reasonable scope (including place and activities). Texas law disfavors restrictions on job-changing, so an agreement would have to go beyond just saying that "a non-compete is required". Since the letter asserts that it is not a contract, there is no clear contractual obligation (they can fire you anytime they want, it seems). | Presumably the lease contains an automatic renewal provision that says unless you give notice 60 days in advance, you commit to another month (otherwise, you can just leave at the end of the month). The landlord may have made a math error, or they may be misinterpreting what the agreement says. Most likely it says that the duration of the lease is a month, meaning a whole month, which can have between 28 and 31 days. Unless otherwise stated in the agreement, that means "to the last day in any given month". A 60 day notice provision states the minimum number of days to stop automatic renewal, not the maximum or exact number of days. The language of the agreement will most likely say something to the effect that the duration of the lease is a month, and that is what the courts will enforce. | http://www.tenantslegalcenter.com/html/eviction_notices.html 3 DAY NOTICE TO CURE BREACH (sometimes called PERFORM COVENANT) OR QUIT is used to notify a tenant that he/she has 3 days to do or stop doing something as per the rental agreement or the law. The tenant can comply with the notice or vacate within the 3 days. If the tenant vacates within the 3 days, he/she is NOT relieved from the rent obligation under the lease or rental agreement. So, the notice must be based on a law and/or the lease agreement. Presumably, the law and/or lease provision must be cited in the notice. The City of San Diego has a GOOD CAUSE law (Right to Know Ordinance) protecting certain tenants in a residential tenancy of at least TWO years and that good cause must be written in the notice. You state that you've been there seven years, so this law applies. To count the days of a notice, you begin on the next day after service as the first day. Weekends and holidays are counted but the last day of a notice to act generally may not land on a weekend or holiday. If it does, and if applicable to that notice, the "last day" can carry over to the next business day. For example, if a 3 day notice to pay rent is served on a Thursday, we count Friday as the first day Sunday is the third day. Since the last day of this type of notice cannot be a Sunday, the "third day" is then Monday (giving the tenant four days instead of three) to pay the rent. If that Monday was a legal holiday, then Tuesday would then be the "third" day (giving the tenant five days instead of three) to pay the rent. http://www.rogerfranklin.org/Instructions_for_Landlords_2017.pdf B. SERVE THE THREE-DAY NOTICE 1. After the Three-Day Notice has been filled out and signed, you must serve it on the tenant. The Three-Day Notice may be served either: (a) By delivering a copy to the tenant personally, or (b) If the tenant is absent from is place of residence and from his usual place of business, by leaving a copy with some person over the age of eighteen (18) years at either place, AND mailing a copy of the Three-Day Notice addressed to the tenant, postage prepaid, first-class mail, to his place of residence; or (c) If such place of residence and business cannot be ascertained and a person over the age of eighteen cannot be found at the tenant’s residence, then by affixing a copy of the Three-Day Notice in a conspicuous place on the property, AND mailing a copy of the Three Day Notice to the tenant at his residence. So if the notice was just left at your apartment, and was not delivered personally or mailed, then the service is invalid. | Lying in itself ("of course you will get a wifi signal here") is not a crime. However, if you have proof that the lies were intended to benefit your landlord at your expense ("You won't sign the lease unless there's wifi? No problem") and that they actually did so ("You've signed the lease, it's too late to back out"), he may be guilty of fraud, which is a civil wrong and may be a crime. You would be well advised to consult a lawyer before going amy further, since there are probably ten people believing themselves to be victims of fraud for every one who actually is so in legal terms. The lawyer will also probably tell you that the best you can hope for is restoration to the state before the lies (in my example, the lease is cancelled and you get your deposit back), though the authorities will look at prosecuting the landlord. |
Can a U.S. state legally prosecute immigration offenses within itself? Suppose a state passes a law that says persons who are not authorized to be here under United States immigration or citizenship law must leave the state or face arrest and prosecution by state officials unless US immigration authorities take them into custody. In other words, if immigration authorities won't arrest and prosecute/deport illegal immigrants in a state, the state will take its own actions. Would this be legal? | No. Arizona tried passing a law that, among other things: criminalized failure to comply with federal alien registration requirements, criminalized working without being authorized to work in the United States, and authorized state officers to arrest aliens without a warrant if they had probable cause that the alien had committed a crime that made them deportable. All three provisions were struck down in Arizona v. United States. The federal government has "occupied the field" on most immigration issues. That means they've regulated it so extensively that there is zero room for states to act independently. One of Arizona's laws that was struck down exactly duplicated a federal criminal statute, but even that went too far by allowing the state to apply its own enforcement priorities and prosecute cases the federal government would not. If a state made it a crime to be unlawfully present (which is not a federal crime), that intrudes even further on the federal immigration scheme. This doesn't mean a state can't alert the federal government to people who are unlawfully present. It doesn't necessarily mean state officers can't arrest for federal immigration crimes: a previous Ninth Circuit decision held that Arizona officers could arrest for federal immigration crimes on the same basis that they could arrest for state crimes, and the Supreme Court in Arizona v. US explicitly didn't address the question. However, if state officers make an arrest for a federal crime, the federal government still gets to decide whether or not to prosecute. What you're asking about would remove that federal control, so it is preempted by federal law. | They are not given independence from statute. This clause just says that conviction is not the end goal of the prosecutor. If in light of the evidence, the prosecutor comes to believe a person is not guilty, they are not to proceed with the prosecution. They must not hide exculpatory or mitigating evidence in order to get a conviction. | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. | As user6726 notes in an answer, the page you link to derives from 26 USC 7701. However, it does not reproduce the text accurately. There, "United States person" is defined at section 7701(a)(30), and it notably lacks anything corresponding to "any other person that is not a foreign person." It's possible that that language is motivated by some court decision, but it's also possible that someone just added it for the sake of symmetry with the definition of "foreign person" without thinking about the logical paradox that it might create. Looking at section 7701, I don't see any explicit mention of US non-citizen nationals. It appears that such a person who does not live in one of the 50 states or the District of Columbia falls under the definition of nonresident alien at 7701(b)(1)(B) even though such a person is explicitly not an alien under the Immigration and Nationality Act. I do not see any regulations correcting this oversight, but I suppose that in practice such people are indeed treated as US citizens. I don't know enough about the classification of nonhuman legal persons as foreign or domestic to have any ideas about whether there are similar ambiguities there. | Absent newly enacted law in response to the end of the separate sovereigns doctrine, the first case to which jeopardy attaches (generally speaking when a jury is sworn and the first item of evidence is presented to it) would bar subsequent prosecutions, without regard to whether it arose in state or federal court. It would be a race to the court house rule. This is how it works if there are multiple prosecutions within a state, for example, one commenced in a municipal court that is not part of a state court system, and another commenced in a state court of general jurisdiction. | I have encountered this problem in Pennsylvania. The PA Code requires a District Attorney to approve all private criminal complaints. If the DA declines to prosecute, then an affiant can petition the Court of Common Pleas to review the decision. However the affiant bears the burden of convincing the court that the DA abused his descretion in declining to prosecute, which is a pretty high hurdle. In the United States the only other legal appeal I am aware of is through federal courts under broad federal laws like 18 USC 242 or 42 USC 1983. | 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. | In the United States, there is no potential liability for the municipality or the police department. There is no legally enforceable duty of police to act to prevent either violations of the law, or apprehend criminals, or to prevent suicide of people who are not in police custody. Other countries have different laws on this subject. |
"Destiny" of issued certificates after account deletion Lets say I have a online-training platform where I issue "completion certificates" to users who complete the course (like Udemy, Coursera, etc.). One day a user wants to delete their account. According to GDPR rules I delete all their records in my databases. But... What happens with "completion certificate". Should I delete it as well? It contains user's full-name. What if the same user wants to show the certificate to potential employer and they want to verify via my platform? What is the common practice for such circumstances? I checked GDPR and Certification Check. They asked about similar case but not exactly what I am asking. | The pragmatic answer is to just ask the data subject what they would like to have erased. The GDPR's right to erasure DOES NOT requires that you “delete all their records in [your] database”. Compared to other GDPR rights, it has a quite limited scope. It is necessary that one ground for erasure in Art 17(1) applies, and none of the exceptions in Art 17(3) apply. For example, you are allowed to retain any data that you need to fulfill a legal obligation (exception in Art 17(3)(b)), such as an obligation to keep financial records for a number of years. In the case of providing course completion certificates, I would assume that your legal basis for providing this service is a contract with the data subject. Contracts directly with the data subject can serve as a legal basis for processing per Art 6(1)(b). It doesn't matter if the contract was paid (consideration is not a necessary element of a contract in civil law systems). As long as this contract is in force, there are no Art 17(1) grounds for erasure. But if the contract is terminated, Art 17(1)(a) would apply: “the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed”. So the data subject could release you from your contractual obligation to provide the certificate verification service, and then require you to delete any personal data in connection with that service. In the unlikely case that you are using a different legal basis for hosting the certificate service: legal basis applicable? grounds for deletion Art 6(1)(a) consent maybe Art 17(1)(b): consent can always be withdrawn Art 6(1)(b) contract yes (see discussion) when the contract is terminated Art 6(1)(c) legal obligation unlikely per legal requirements Art 6(1)(d) vital interests no Art 6(1)(e) public interest unlikely per legal requirements Art 6(1)(f) legitimate interest maybe Art 17(1)(c): objection to further processing per Art 21(2) For all of these legal bases, it is the case that once the legal basis expires, then Art 17(1)(a) provides grounds for erasure. In fact, proactive erasure (without waiting for a data subject request) may be required in line with the Art 5(1)(b) purpose limitation and Art 5(1)(e) storage limitation principles. To quickly summarize all Art 17(1) grounds for deletion: Art 17(1)(a): data is no longer necessary Art 17(1)(b): consent withdrawn (only if Art 6(1)(a) consent was used as legal basis) Art 17(1)(c): objection to further processing (only if Art 6(1)(f) legitimate interest was used as legal basis) Art 17(1)(d): unlawful processing always merits erasure Art 17(1)(e): erasure is required by law Art 17(1)(f): special right to erasure for children Note that it is, in principle, possible to provide certificates without storing personal data. This could make it unnecessary to think about data subject rights like erasure. For example, you could provide a certificate to users. The certificate contains personal data, and you do not store a copy of the certificate. But you could use cryptographic signatures to prevent forgery of the certificate. The signature can be verified without having to store personal data. If you are familiar with web development, the same technique is used for JWT tokens: the data in the token is signed by a secret key so that it can be verified whether a token (and the data in the token) was created validly, without having to store a copy of the data in the token. Limitations of this approach are well-known, such as making it difficult or impossible to revoke certificates. In practice, such data-minimization techniques are overkill. The GDPR only requires appropriate security measures. If you have a legal basis (such as a contractual obligation with the data subject) then it is perfectly fine to store a certificate with personal data in your service. The GDPR obligations stemming from such a processing activity are not particularly onerous. | 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. | Per GDPR Art 12(5), “any actions taken under Articles 15 to 22 and 34 shall be provided free of charge”. The right to rectification is Art 16 and reads in its entirety: The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement. Thus, I think it would be invalid to charge a fee for an address change if that change was made in exercise of your data subject rights. If you didn't invoke this right, it's debatable whether charging a fee would be proper. On the one hand, they can charge whatever service they want (provided that this was part of the contract you entered). On the other hand, they have an obligation to assist you with your exercise of data subject rights. This includes recognising a data subject request even if you didn't explicitly invoke the specific GDPR article. For example, refusing a request for erasure just because you didn't invoke some magic GDPR words would be clearly noncompliant in my opinion. If the company offers multiple customer service options, charging for some of them may be all right. Typically, the lowest-cost solution for a company to deal with GDPR requests is to offer an online self-service option. An email to the data protection officer would typically also be free. Charging for phone support might be fine though. In an insurance context, there could also be a legitimate claim that updating your address is not a mere correction of your personal data, but a modification of the contract (depending on what you're insuring). Another possible counterpoint (which I think is not valid though) would be that the company never stored inaccurate data and therefore doesn't have to satisfy a rectification request. | a few quick notes that come to mind. As the commenters point out: DSGVO is indeed the German equivalent name to the GDPR (English term) "Imprint" isn't a privacy related topic that much, as such it's not really changed by the upcoming GDPR The GDPR changes many things, but the requirement for up front information isn't one of them - so it would've already been a rule to follow Sometimes the question who is responsible for privacy information might not be that easy to decide when you're on platforms. I take this situation as being pretty clear though. You are basically given a blank slate, you can do with that page whatever you want, and the visitor has no clue whatsoever that it might be hosted by Github. In addition to this, Github would be classified as a data processor (providing the tool) and you as the data controller who is in charge of practically everything except for the provision of the page. I hope this helps. Btw. it's not that hard anymore to write a privacy policy these days. | This will depend partly on what you use the e-commerce website for. If it is simply a point-of-sales and your accounting records are kept elsewhere, then it may be possible to delete their account including associated orders and payments, though you should check that the software doesn't simply update the record by setting the value for a column named deleted or del for short to 1 instead of 0 to identify deleted records, but instead actually deletes the record from the database. You should consider how you will refund a customer if required after doing so!! (i.e. perhaps you acknowledge the request but keep the information for at least as long as the customer is eligible for a refund, and then delete it). If the system is also used for accounting records, then if a customer/user wishes to assert their right to be forgotten, it is likely you'll need to disable the account and apply some kind of pseudonymisation (essentially replacing personal identifiers such as name, email address, date-of-birth, with dummy/null data), in order to preserve the integrity of your financial records. For example, in the UK, there is a statutory obligation on companies to retain financial records for at 7 years. In cases where data cannot be immediately erased due to other legitimate reasons for which it must be kept, once those retention periods expire the data must be erased. You'll need to keep a record of anyone that requests to be forgotten, and remember to follow-up to complete erasure at the appropriate dates if it can't be done immediately, and when the data is destroyed the user needs to be informed. | There are not enough facts to draw a conclusion First, it’s not clear that the document you signed amounts to a contract. For example, what consideration did the school give you in return for the permission you gave them? Providing you with an education doesn’t count - they were legally obliged to do that already. If it is a contract then whether and how it can be revoked would depend on the terms of that contract witch I’m guessing you don’t have a copy of. Notwithstanding, as a minor, you have the right to void the contract until a reasonable time after you turn 18. Even if it is now many years since that happened, it might be reasonable since you only just discovered the website. If it isn’t a contract, then it would be revocable at any time. Practicalities Make a fuss and they may take the photos down even if they are not obliged to. They presumably have plenty of photos of kids who aren’t you and aren’t complaining and if you make it so it’s easier to change the website than to deal with you, thy’ll change the website. I suspect their inertia is because they once paid a web developer to create the site, it has never since been updated, they don’t know how to do it, and they don’t want to have to pay someone to find out. Otherwise, why would they have photos of ex-students rather than current students? If so, an offer by you to cover the costs, might solve your problem. | It is not possible for someone to forfeit their rights because the GDPR is compulsory law. In the EU, laws can be regulatory or compulsory. In case of an agreement, regulatory laws can be set aside, if both parties agree on that. But compulsory laws cannot be set aside. Of course laws can also be partly compulsory. For example provisions which cannot be changed in disadvantage of a consumer. So there is freedom of contract, but it's freedom is reduced by law for the common good or for example to avoid misuse of bargaining power. In particular consumer related laws are often compulsory because it has little power against the other parties. Companies can have their negotiations done by lawyers, so they can make a well informed an well negotiated decision. As an extreme example, you cannot kill someone, even if that person has given you written permission. See also "Peremptory norm" on wikipedia for international law examples. | 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. |
Is the composition of a photo protected by copyright? Norwegian photographer Stig Håvard Dirdal recently accused a Russian movie of plagiarism due to them recreating his work from 2015: But is this actually something that would be protected by copyright, at least according to US law? It seems like while the composition of the photo of the same, it won't be covered by copyright protections as one can't use it to protect ideas. | united-states The composition of a photograph, a painting, or an image of any sort is one of the elements that can be protected by copyright, and indeed one of those aspects that make an image original and thus a proper subject of a copyright under US law. A new image that imitates the original and distinctive composition of another might be held to be a derivative work, and thus an infringement of copyright if done without permission. Note that the composition must be original. A photo of, say, two people standing side-by-side has been done many times, and would probably not have any distinctive element of composition. The images shown as part of the question look rather distinctive to me, but for all I know this is a cliche that has been done over and over. If this came to an actual lawsuit a defendant could present evidence showing the composition to have been previously used by others, and thus common coin, free for anyone to adopt. This would be similar to the Scènes à faire concept. Things that have been done over and over are not original and are thus not protectable by copyright. That would ultimately be a judgement for the court to make, dependent on the facts of a specific case. I suspect this answer is correct for the laws of many countries, but I can only confirm it for US copyright law. | If a work is in the public domain, then there are no particular requirements on its use; in particular, it can be used on a book cover without a copyright notice, a public domain notice, or any other kind of notice or mark. Wikimedia Commons' public domain template says, "You must also include a United States public domain tag to indicate why this work is in the public domain in the United States." This is a notice to users of Wikimedia Commons, informing them that if they upload a public domain image to Wikimedia Commons, they must include a public domain tag. That's a policy of Wikimedia Commons. It doesn't apply to people using the image outside of Wikimedia. | Assuming that the images are in fact released by the copyright holder under the CC_BY 2.0 license, and not under the CC_BY_NC or CC_BY_SA license, you are free to use the image on a book cover. That the book is erotic makes no difference. You must attribute the cover image to the original creator, as specified in the license, unless the creator has indicated that no attribution should be provided. You must not state or imply that the original creator has in any way endorsed your book or you. Be careful to check that the person releasing the image is in fact the copyright holder. It is not unknown for someone to upload someone else's image and claim to release it under a CC license. Obviously a "license" from someone who had no rights does not give you or anyone any rights. Just as buying stolen goods from a thief does not give you title to them. It is your responsibility to confirm that the person who released the image had the right to do so. | The resulting figure could surely be covered by copyright, if it is original. A new set of folds to make a known figure might not be separately protectable under US law. In this news story A court in Japan is said to have held that: the folding instructions are indeed a copyrightable subject matter, because (i) the author’s selection of 10 out of 32 folding steps were subject to alternative modes of expression; (ii) the author’s folding instructions, including the organization of the diagrams, the texts, and the drawings, had elements of “style”; (iii) taken in its entirety, one admittedly found room for creative expression (Tokyo District Court Opinion: Case No. Heisei 23 (2011) (Wa) 18968 (Tokyo D.Ct., May 20, 2011). But it further held that the particular diagram displayed was not an infringement of the claimed source. In this tech dirt podcast a suit over an artwork derived from a folding pattern is reported. Tech dirt thinks it is an obvious case of fair use. The British Origami society says: The issue of how the laws of copyright affect origami diagrams and models is an important one. Groups such as the Origami Artists and Creators are working towards an internationally agreed set of guidelines. Dr. Robert Lang has presented his interpretation on his website. Until a common statement is agreed, we refer people to the terms in our constitution. (1) The Society and its Members shall respect all copyrights, registered trademarks and registered designs in all models, designs, diagrams, photographs, books and writings and shall observe the laws of copyright, registered trademarks, registered designs and patents and all other provisions relating to intellectual property which are applicable in all the separate countries throughout the World. (2) This article shall apply to all models, designs, diagrams, photographs, books and writings whether existing in writing or print on paper or any other hard copy or existing in electronic form, photocopy or microfiche in libraries, public or private archives or on the internet or on recorded discs or tapes of any kind or in any other kind of electronic record and whether made commercially or otherwise publicly or made privately. (3) Before reproducing any model, drawing, photograph or text contained in any publication, a member of the Society shall obtain the consent of the copyright owner before publication. (4) As a matter of courtesy, whether or not required to do so by law, the Society and its Members shall give proper acknowledgement to the original author of any model, design or diagram demonstrated or reproduced in any manner. Origami USA says that: OrigamiUSA is very concerned about protecting and respecting the rights of origami artists, authors, and diagrammers. While "traditional" origami models are in the public domain, the vast majority of published origami designs are of recent authorship and therefore cannot be published or used commercially without obtaining permission from their creators and/or diagrammers. It seems that few suits on origami copyright have been filed, and then appealed to where opinions are published and thus accessible to a non-professional's search. | The modern rule in the UK is that copyright lasts until the end of the calendar year following 70 years after the death of the author. So if the author died in or later than 1953, it would be under copyright under this general rule. However, this wasn't always the rule and the museum speaks of a copyright revived in the 1990s. So I went down that rabbit hole of historical UK copyright legislation. I personally find it interesting, but it turned out to not be entirely determinative. It all turns on publication date and date of death of the artist, neither of which I can find, with the museum only stating the artist was active in the 1930s. But even assuming the most favourable facts for this to still be copyright under a "revived" copyright, the latest date I can find for copyright to still remain under that regime is end of 2015. Per Copyright Act 1956 s. 3(4)(a): in the case of an engraving, if before the death of the author the engraving had not been published, the copyright shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which it is first published; For the fact pattern I'm outlining, we must assume the author died before publication. As for the engraving bit, s. 48 defines that lithographs are engravings, and while I am far from an expert in this field, skimming the Wikipedia article on lithography, it does seem quite possible the poster could be a lithograph. I'll note here since you bring up who precisely would be the owner of the original copyright, that it does seem likely that the poster was a work for hire, following the provisions of s. 4(2). As such, the copyright would have indeed ultimately transferred to British Rail. Jumping ahead a bit, the more precise year which the museum states is "the 1990's" is 1995 (we'll get to why). So in order for copyright to have first expired as per the museum's statement and the authors active years, we must assume a publication date between 1930-1945 (or thereabouts, I'm not being super careful in this answer about the months things happen in, so there may be accumulation of off-by-one errors). Because of those years, I now have to quickly address why the Copyright Act 1911 isn't relevant. The transitional provisions outlined in the Seventh Schedule reveal that only for photographs are the copyright duration provisions maintained from the 1911 Act. Now we can jump into the modern law, the Copyright, Designs and Patents Act 1988 (CDPA). The transitional provision in the Schedule 1 s. 12(2)(b) directly maintains the 1956 copyright duration in this case which given our possible publication years, would have led to copyright expiry sometime between 1980-1995. However, in 1995, the UK passed The Duration of Copyright and Rights in Performances Regulations 1995. This was in accordance with European legislation harmonizing copyright duration, in Directive 93/98/EEC (itself since replaced by Directive 2006/116/EC). Side Note: 1995 is a peculiar year for copyrights in Europe due to that directive and so is exactly where I started my research for this answer, because it caused weird quirks for copyright terms in some countries in some cases. For the UK, s. 5 of the regulation amended the CDPA, basically establishing the general European standard of copyrights expiring 70 years after the author's death. More importantly for our case though is the regulations own section explaining in which cases the new copyright term expires. In s. 16: The new provisions relating to duration of copyright apply— (a) [...] (b) [...] (c) [...] (d) to existing works in which copyright expired before 31st December 1995 but which were on 1st July 1995 protected in another EEA state under legislation relating to copyright or related rights. Now, I'm not going to go through and look at all the EEA contries legislation to confirm, but it seems incredibly likely that one of them would have had engravings protected for life+70 in 1995, given that's what Europe has now standardized on (since we're assuming pre-publication death for an author who was active in the 1930s). Notably, s. 17 even defines cases of expired works re-entering copyright as "revived copyright", matching the terminology the museum's statement used. It would have been great if the 1995 regulation explicitly spelled out the relationship with CDPA's Schedule 1 s. 12, but in judicial interpretation, newer legislation takes priority, so the 1995 law would control. Note: The answer is getting long enough so I'm not going to fully research/cite this, but for regulations vs. legislation, we have a weird case of a regulation amending a statute. I'm fairly certain this is due to UK Acts passed for European Community membership elevating regulations to primary legislation when they are passed for compliance with European law. So given our assumed facts, the poster would have revived copyright per the 1995 Regulations. However, you may note (as I belatedly did after first posting this answer) that even given revived copyright, that revived copyright is still life+70. And the assumptions made for copyright revival under this clause requires a posthumous publication date of 1945 at the latest. This means at best any copyright under these particular circumstances would have expired in 2015. There is a bit of a middle ground here. If the poster is not a lithograph, or the publication was not posthumous, the work would have gained a life+50 term per aformentioned Copyright Act 1956 s. 3(4). But then for copyright to expire and be revived, we still have to assume a 1945 death date at the latest. Alternatively, instead of copyright revival, it could have gotten extended from life+50 to life+70 per the 1995 Regulations s. 16(c). But because we are more than 20 years from 1995, it mathematically works out that it doesn't matter anymore and we can just work with the life+70 rule. A combination of 1995 Regulations s. 16(c) and posthumous publication though does actually give another reasonable way for the work to still be under copyright. If published in 1988 before the CDPA entered into force, it would have followed the cited 1956 rules of copyright expiring 50 years after publication. The 1995 Regulations s. 16(c) specifies that longer existing terms can continue. So that results in 2038 as a latest possible year through this method. In the end I think there are two or three reasonable interpretations: The museum is correct the work is under copyright, but incorrect about the reason. It's instead because the work is under copyright because the author died after 1953 (or is still living), or The work is still covered under the 50 years after posthumous publication rule for engravings established in the Copyright Act 1956 (publication years 1973-1988 for copyright expiry at the end of calendar years 2023-2038). The museum is correct that copyright was revived, but I can't find a way for this to be true and for the work to still be under copyright (with 2015 the latest year I can find for the given facts). Note that this is my own reading of legislation, please take it with a grain of salt. | You automatically have a copyright in any copyritable things you create. So you own copyright over the pictures you sent him (as long as you created them) | OSM does use aerial/satellite images. But as the OSM FAQ explains, Google Maps and similar sources have unsuitable terms of service. These would prevent use even if no copyright was involved. The location of a street is factual and cannot be copyrighted. However, a photo of a street (whether at eye level or from a satellite/plane) can be protected by copyright, as can the presentation of this fact as part of a map. Maps are not necessarily just databases of facts1 but involve decisions in how to best present and arrange this information. Similarly, projecting aerial photography onto a map is not merely a gallery of images – it requires warping, stitching, retouching, and color-adjusting images e.g. in to remove cloud cover. Creating the raw images also requires decisions about flight patterns, altitude, camera perspectives, lenses, and exposure times. Compare the guidance in Circular 42 of the US Copyright Office: The copyright in a photograph protects the photographer’s artistic choices, such as the selection of the subject matter, any positioning of subject(s), the selection of camera lens, the placement of the camera, the angle of the image, the lighting, and the timing of the picture. The result: Whether I make a panorama snapshot with my smartphone camera, or a billion-dollar company flies a plane to create an array of aerial photographs – the result is likely to be a copyrightable image, regardless of the substantial involvement of automated means. Even if the subject of the photo is very boring and seems uncreative.2 Of course, there is some public domain imagery that can be used. In particular, works created by US government agencies is public domain within the US. However, the materials produced by the likes of NASA and the NOAA/NWS are not necessarily useful for mapping purposes. And public domain status within the US is of no use to people outside of the US, which many OSM contributors are. 1. Databases are subject to copyright in some jurisdictions, notably the EU. 2. Technical photography without artistic merit is still covered by copyright. Other countries might apply a different threshold of originality, but this aspect is somewhat universal. | I would argue that no, there is no copyright for the restored work. Independent copyright is only possible for any original material added, as previously discussed on this site. In this case, the added work was a technical process rather than a creative process, and technical processes cannot be protected by copyright. Copyright licenses would therefore be ineffective. However, I believe one could still impose a license based on owning the copy as opposed to the copyright (contract might be a better term in this case). However, if a third party managed to obtain a copy through some other avenue, any such contract would not be binding on them and nothing could be enforced against them unlike with copyright laws. Another way a license might be imposed is through patent protections, as technical processes can be protected via patents. However, I'm not as familiar with patent law, and this doesn't appear to be the claim being made. |
What's the problem with red ink? I have repeatedly encountered lawyers who refuse to sign documents using red ink or accept documents that are signed in red ink. No one has been able to articulate exactly why in my conversations, but there seems to be a belief that red ink is forbidden or that a signature in red ink is somehow not binding. Is there any legal authority to support this reluctance? | It depends on jurisdiction and purpose. In Ohio, per O.R.C. 317.114(A) an instrument or document presented for recording to the county recorder shall have been prepared in accordance with all of the following requirements:.. (4) Black or blue ink only; There are also blue-specific requirements, for example in Pierce County WA juvenile courts, a petition to list a sex offender registration requirement must be signed in blue (so that the original can easily be identified). | There is probably no harm in trying to negotiate it with them by explaining the issue to them (ideally in writing with attachments to back it up). If no agreement can be reached, a lawyer might make sense, but given the relatively low stakes, a lawyer's fees could exhaust much of the amount in dispute and if you didn't prevail that would be particularly disappointing. | Neither law has precedence - manufacturers have to obey both. The FD&C says that they don't need to list ingredients which are trade secrets; the CFR says they must. If they list the trade secrets they do not break either law. If they don't, they break the CFR. Conclusion: they must list the trade secret ingredients. If the FD&C said it was forbidden to list trade secret ingredients, but the CFR required it, manufacturers would still have to obey both laws - which would mean they couldn't sell anything where one of the ingredients was a trade secret. | Primary Theory I suspect there might not be a legal answer to this question. I have always suspected a sort of pseudo-intellectual elitism (or simple preference or carelessness) with passive voice sentence construction in general. I sense license writers have not (yet) escaped this general trend. I would love someone to prove this theory incorrect. But, alas, I doubt it will happen. Alternative Theory But because this is a Law Q&A site, I will advance the following alternative theory. I don't believe it's correct. But I will advance it because it's the only possible explanation I can think of that might be even remotely based on legal reasoning... Maybe they are just basing their construction on the way the law itself is written? For example, if the law says, "Permission must be granted..." Then it would follow that a writer who wants to comply with the law might choose, "Permission is hereby granted..." instead of something like "The authors hereby grant permission..." or, as the OP suggested, "You may..." | tl;dr According to the ACLU, who are experts on this… yes, it is perfectly legal for you to refuse to provide documentation or ID to border patrol, and your refusal cannot be used as a basis for reasonable suspicion of an immigration violation. The ACLU has a very helpful guide to your rights when questioned at Border Patrol checkpoints, whether fixed or random. Emphasis in these excerpts is mine: Refusing to answer CBP’s questions may result in the agent persisting with questioning. If this occurs, you should ask if you are being detained. Another way to ask this is to say, “am I free to leave?” If the agent wishes to actually detain you — in other words, you are not free to leave — the agent needs at least reasonable suspicion that you committed an immigration violation to do so. As I understand it from other legal sources, this means that the agent must have a reasonable suspicion that you are: not a US citizen and that you have violated immigration law And furthermore: You do not have to answer questions about your immigration status. You may simply say that you do not wish to answer those questions. If you choose to remain silent, the agent will likely ask you questions for longer, but your silence alone is not enough to support probable cause or reasonable suspicion to arrest, detain, or search you or your belongings. … As before, when you are at a checkpoint, you can remain silent, inform the agent that you decline to answer their questions or tell the agent you will only answer questions in the presence of an attorney. In the YouTube videos of checkpoint refusals, you'll see lots of folks declining to answer questions or stating that they will only answer questions from law enforcement in the presence of an attorney. If you are held at the checkpoint for more than brief questioning, you can ask the agent if you are free to leave. If they say no, they need reasonable suspicion to continue holding you. Lots of this in the checkpoint refusals too. The drivers ask if they're being detained and/or if they're free to leave. If you watch closely you'll probably see that many of the Border Patrol agents avoid answering these questions — because they know that they don't have sufficient suspicion to detain the drivers. You can ask the agent to tell you their basis for probable cause, and they should be able to articulate their suspicion. This is also seen in some of the videos. There's a very important caveat about when you are required to provide documentation (other than at the border): A limited exception does exist: for people who do have permission to be in the U.S. for a specific reason and for, usually, a limited amount of time (a “nonimmigrant” on a visa, for example), the law does require you to provide information about your immigration status if asked. While you can still choose to remain silent or decline a request to produce your documents, people in this category should be aware that they could face arrest consequences. If you want to know whether you fall into this category, you should consult an attorney. … If an agent asks you for documents, what you need to provide differs depending on your immigration status. U.S. citizens do not have to carry proof of citizenship on their person if they are in the United States. If you have valid immigration documents and are over the age of 18, the law does require you to carry those documents on you. If you are asked by an immigration agent to produce them, it is advisable to show the documents to the agent or you risk being arrested. If you are an immigrant without documents, you can decline the officer’s request. An agent may likely ask you more questions if you decline a request. No matter what category you fall into, never provide false documents to immigration officials. If you are a citizen you have no obligation to provide documents to establish this; it is not illegal for you to refuse. If you are undocumented, you do not have any obligation to provide documents; it is not illegal for you to refuse. If you are a non-citizen and do have valid documents, you are required to provide them — apparently, it is illegal for you not to do so. So if you're a non-citizen who's legally present in the USA for a temporary term (e.g. tourist, student, business trip, etc.) then you are required to show documents proving this. But if you're undocumented you can — and should!! — do what you see in the videos, and refuse to provide documentation. The Arizona ACLU has a helpful printable sheet with additional pithy points: You may be asked where you were born, how you entered the U.S. or how long you’ve been here. You don’t ever have to answer those questions. Your responses may be used to detain and deport you. … NEVER FLEE A CHECKPOINT! | If the patent lawyer "hears about" such failed patents from clients, and then uses the client's work and modifies them into successful patent filings, that would seem to be a clear conflict of interest, just as a business lawyer cannot use info learned from a client to make his own business deals, unless the client grants an OK. But if the patent lawyer just hears through shoptalk, or through communication by, perhaps, patent examiners that the lawyer works with, I don't see any conflict of interest, although as the comment by Eugene Styer suggests, there is likely to be enough prior art to make the patent invalid. | The copyright holder is free to release the work under whatever licenses the copyright holder wants, in the absence of a contract saying otherwise. A copyright holder could sign a contract not to release under another license, but otherwise I don't see why he or she would waive the rights. The copyright holder can always decide not to reissue under a different license. The copyright holder basically retains all rights not specifically signed away. Everyone else is limited to what copyright law allows and to what license terms they have. | 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). |
If people challenge the decision of implementing an anti-vax tax, would the government have to wait before taxing people? By threatening to implement a vaccine tax, Quebec is ostensibly trying to make vaccination against COVID-19 obligatory. Although such a measure would probably violate Canada’s Charter of Rights and Freedoms, the government could argue that it’s justified because it’s needed to fight the pandemic’s latest wave. Allowing an exemption for those with medical conditions would buttress the government’s position. “It would be a close call,” Grey said when asked whether the courts would uphold Quebec’s position if a future law would be challenged. https://montrealgazette.com/news/quebec/quebecs-anti-vax-tax-difficult-to-enforce-experts-say If people challenge the decision of implementing an anti-vax tax, would the government have to wait before taxing people? I am wondering if the government can still implement it and force people to pay even if the decision is challenged in court. I am thinking the government might be able to tax people and then refund people if the court doesn't uphold the decision instead of a court challenge being able to postpone the tax indefinitely. | I am wondering if the government can still implement it and force people to pay even if the decision is challenged in court. Laws are not automatically put on hold because they are challenged. For an action or a law to be halted by the Court before a decision is made, the applicant would have to seek an interlocutory injunction, which are granted only if, as established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, (i) is there a serious issue to be tried, (ii) will the party seeking the injunction suffer irreparable harm if it is not granted, and (iii) does the balance of convenience favour the party seeking the injunction. The first issue is rarely a problem, especially for a controversial issue like this. I am thinking the government might be able to tax people and then refund people if the court doesn't uphold the decision instead of a court challenge being able to postpone the tax indefinitely. A quantifiable financial harm is rarely irreparable (in private law cases). However there is an important exception for Charter cases where a financial harm is assumed to be irreparable because damages are often not awarded in constitutional cases. Though in this case it might be considered reparable because the quantification of damage and the method of redress are straightforward. For the third question, the Court needs to weigh both sides' interests in the case where the injunction is granted. Even if the damage is deemed irreparable, the Court may (or may not) still find the public interest in health outweighs the financial interests of the unvaccinated. | https://bchumanrights.ca/mask-poster/ Technically speaking is wearing masks a law, a health order or the store policy as a result of the health order? Technically speaking it's a Ministerial Order made under the power delegated to the Minister by the Emergency Program Act R.S.B.C. 1996, c. 111, s. 10. Can a customer be denied service or entry for not wearing a mask even if they claim they have a medical exception? No, they cannot. If they claim they have an exemption, then as far as you are concerned, they have an exemption. Refusing service would be illegal discrimination on the basis of disability. Must they prove it with some sort of certificate? No. Some people have claimed that they do not need to show proof. Those people are right. If the customer is acting in a dishonest manner, for example if I see them wearing a mask before entering the store, does that make a difference? No. Does the quality of mask or the material it is made of make a difference? Yes. They must wear a face covering. "face covering" means either of the following that covers the nose and mouth of a person: (a) a medical or non-medical mask; (b) a tightly woven fabric; Some customers pull their shirt over their face and my coworkers tell them that is alright. Depends on the shirt: if it is made of "a tightly woven fabric" then it is alright. | In principle, police are liable for the safety of anyone they detain. If an officer creates a hazardous condition, as was described in this scenario, he or his agency (which effectively means the taxpayers who fund his agency) can be held liable for damages resulting from that action. (Whether it is the officer or instead the taxpayers who get stuck with the bill is a separate question of "qualified immunity.") This idea has been formalized under two theories: The "special relationship doctrine" would apply in this case because the officer was detaining the driver. Otherwise, the liability could be argued under the more broad "state-created danger doctrine." | 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. | Yes, it can. This analysis is IMO very informative of the role of Part IV in Indian law, especially considering a comparison to the related concept of constitutional (fundamental) rights. Fundamental rights are justiceable, directive policies are not. Contraventions of rights can be rescinded by courts, but the courts cannot declare any law to be void because it violates these directives. The directives neither give nor take away legislative power: they are suggestions. | In the US, it depends on why you are doing this, and how you go about performing the operation. There are approved devices and procedures, and there is the other stuff. In an emergency that is life-threatening or threatens severe debilitation, it is permitted for a physician to try an extreme measure – if the state has a "Right to Try" law. Otherwise, a review and official approval by the relevant IRB is required. The devices are regulated by the FDA, but the FDA does not regulate the practice of medicine, so the feds don't have a say in whether a procedure is allowed. Nevertheless, use of unapproved devices can be taken to be evidence of failing to meet the required standard of care, in the case of a malpractice suit or punitive action by the state regulatory board. There is no specific law prohibiting removing lots of organs and replacing them with prostheses, though arguable what happened was that the brain was removed (it's not that a replacement shell was built around the person). Ordinarily, intentionally "killing" a person is illegal (except in case of sanctioned execution or self-defense). There is zero case law that would tell us whether removing a brain from a body "kills" the person. Most likely, there would be a prosecution for unlawfully causing a death, and either the legislature would tune up the law w.r.t. the definition of "causing death", or the courts would do so. | You can't just interpret the word "require" in isolation, you have to focus on what is allowed vs. disallowed by law. Guidance point K.1 starts with the rhetorical question Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19? They respond that no federal EEO laws prohibit such a requirement "subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations" (thus providing an answer to the question whether it can always be "required". However, they do not discuss the possibility that other laws (non-EEO, state, local: also contract law) that would prevent an employer from "requiring" a vaccination. They do not elaborate on ways that an employer might "require" a vaccination, leaving it to the inventive reader to figure out what legal leverage a company might have to get compliance. Assaulting non-compliant employees is not legal; withholding wages is not legal. Reassigning a non-compliant worker to working in the sub-basement may be legal, requiring a non-compliant worker to wear an anti-vaxer warning badge might be legal. Firing the employee, or reducing their hours to 0 until they comply, might be legal. But the EEOC is not advising employers in safe ways to sanction non-compliant workers, they are just stating their interpretation of applicable anti-discrimination law. Indeed, they can only address matters of discrimination, because that is what they address in general. They do not write the labor law regulations, that's the job of the Dept. of Labor. They are not giving legal advice as to the scope of allowed requirements set by employers. | Yes and no In Germany, the first case where vaccination was mandatory was Smallpox. The Bundesverwaltungsgericht had adjudicated back in Juli 1959 – I C 170.56 - that mandatory Vaccination (Impfpflicht) against Smallpox follows the Impfgesetz of 1874 (RGBl. S. 31) which was declared a) still good law and b) in line with the Grundgesetz and so enforced vaccination of everybody who had no counterindication was inside the law. Currently, the measles are under mandatory vaccination with the MasernschutzgesetzInformation, german aka IFSG § 20law, german (Measles are listed in Abs 8). The same rationale and legal basis from those two can be applied to theoretically any other vaccination - if it is comparably terrible. The Masernschutzgesetz declares that without MMR vaccination you can't work in some jobs, like as a medical care worker, teacher or in a Kindergarten, and you can't be enrolled in a school or Kindergarten, unless you have a counterindication. Note that you do need to visit a public school, so the Masernschutzgesetz is total mandatory vaccination against measles for kids. The 2020 update on the law of infectious diseases (Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen. short: Infektionsschutzgesetz/IFSG, see above) still (and actually did since the measles change in 2019) open the door to make some vaccination mandatory exceeding the measles in IFSG §20 Abs 6 - for especially vulnerable parts of the population: Das Bundesministerium für Gesundheit wird ermächtigt, durch Rechtsverordnung mit Zustimmung des Bundesrates anzuordnen, dass bedrohte Teile der Bevölkerung an Schutzimpfungen oder anderen Maßnahmen der spezifischen Prophylaxe teilzunehmen haben, wenn eine übertragbare Krankheit mit klinisch schweren Verlaufsformen auftritt und mit ihrer epidemischen Verbreitung zu rechnen ist. Personen, die auf Grund einer medizinischen Kontraindikation nicht an Schutzimpfungen oder an anderen Maßnahmen der spezifischen Prophylaxe teilnehmen können, können durch Rechtsverordnung nach Satz 1 nicht zu einer Teilnahme an Schutzimpfungen oder an anderen Maßnahmen der spezifischen Prophylaxe verpflichtet werden. § 15 Abs. 2 gilt entsprechend. The general gist of that paragraph is: Following a regulated process, people that are vulnerable and under a present and current risk of an epidemic and that do not have counterindication can be mandated to undergo prophylactic treatment, which can include or be a specific vaccination. TL:DR So yes, there is mandatory vaccination in germany, but currently not for everyone but based on certain criteria. |
What are the legal implications of "finding" money? What luck! You found $1M in a suitcase while hiking in the wilderness. Because you are a law abiding citizen, you diligently report all your found money to the IRS. No one, including yourself, has any way to prove that you did or did not cause this money to be where it was or that you did or did not know it would be there. Are you within the law? Being more serious, is unexplained money in and of itself illegal if you report all your income to the IRS? If an explanation is required, are "I found it", "anonymous gift", or "I decline to explain" a sufficient explanation? On face, it sounds draconian and absurd to outlaw finding money. On the other hand, it's likely that someone who regularly "finds" large amounts of money is an inept money launderer and engages in other illegal activities. It wouldn't be too surprising if simply having large amounts of unexplained money in and of itself was illegal. Does the situation change if instead you find a bag of diamonds (or any other asset) while on your hike? What if this happens on a regular basis? I'm interested in US law. | I am unfamiliar with specifically US laws on this but under common law (which US law is derived from) there is the crime of "Theft by Finding", however, because you turned it over to the authorities who, after the required time period were unable to find the rightful owner, the money becomes yours. However, you still have to pay your taxes on it: http://www.foxbusiness.com/personal-finance/2014/07/03/found-money-is-awesomebut-must-pay-uncle-sam/ As far as I can see, income is income whether it comes as cash, diamonds or long lost antiques. As far as the money laundering aspect, that is something the authorities would need to prove - as opposed to you just being lucky. | 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. | Stealing money is theft, see RCW Chapter 9a.56 in Washington, and analogous laws in other jurisdictions. What you describe is theft, as defined under RCW 9A.56.020, and that is a crime. Defenses are available only in case of an open taking made under a good faith claim to title to the property ("it's my money"), or an irrelevant defense related to pallet theft from a pallet recycler. There is no exception arising for goods "in the possession of a criminal organization". There is also no applicable attainder process for declaring an organization to be a "criminal organization" to which such an exception could be referred, in Washington or any other state that I am familiar with. At the federal level, 18 USC Ch. 96 does not have a provision for declaring some organization to be a "criminal organization", but it does prohibit using proceeds from "a pattern of racketeering activity" that a person or organization participated in, to support a business engaged in interstate or foreign commerce. There is an extensive but specific list of trigger crimes, which are all federal crimes. Supposing that a state wanted to make it legal to steal from criminals, there would have to be a suitable definition of "criminal". Compare the various sex offender laws, where under dell-defined circumstances, a person is legally declared to be a sex offender required to register. If the property is in fact the proceeds of a criminal activity (not merely "in the possession of a criminal") or is used to support criminal activities, it might be seized under civil forfeiture statutes. However, those statutes only allow the government to seize the property – vigilante civil forfeiture is still theft, a crime for which you can be prosecuted. The state might seize such assets and, when challenged in court, may have to prove that the assets a seizable (this is highly jurisdiction-dependent). The prospects that a prosecutor will turn a blind eye to a theft on the grounds that the victims are criminals is pretty small. More likely, everything gets seized and everybody gets prosecuted. | 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. | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. | Here is an excellent (and extensive) explanation of jurisprudence regarding the "good faith exception" to the admissibility of evidence found due to an error. In short: Yes, the contraband found in Unit B would be evidence admissible in court. (Of course, evidence found in Unit B would only support charges against whomever had a nexus to that property. If the owner of Unit C had no access to Unit B, then evidence in Unit B would not per se implicate him in a crime.) Law enforcement will not return seized property if it believes the property is "contraband." As an example, in Pennsylvania a person can petition a court for return of property seized by law enforcement: Rule 588 requires the petitioner to establish entitlement to lawful possession of the property, but the motion will be rejected if the State successfully argues that the property is contraband, or "derivative contraband" (which has been defined in case law to mean there is "a specific nexus between the property and criminal activity"). | Money Laundering The primary crime that you have described is called money laundering. Note that money laundering includes: "structuring financial transactions in order to evade reporting requirements." Unlike some other forms of money laundering, this does not require that the source of the funds be criminal, or that the actual transfer be criminal, so long as it is intended to avoid reporting requirements. Along the same lines is the even less obvious offense of smurfing. So, this does not cease to be money laundering because: "A legally possesses the money and has a perfectly legal (and very private) reason to pay it to B." The transfer would typically have had to be reported on a Form W-2 (wage and salary income), a Form 1099 (most transfers that are usually taxable income), a Form 709 (gift tax return), a Form 1098 (mortgage interest), or 1040 Schedule A (deductible payments), or on a cash transaction form if conducted in that manner. The fact that you are reporting it as income, and that there would have been some disclosure requirement if paid to person B, implies that there is some reporting requirement that is avoided. Tax Crimes There are also multiple tax related crimes that could be implicated, not all of which require that taxes due by the person charged by reduced. See, e.g., Conspiracy to Defraud the United States (18 U.S.C. § 371); Attempts To Interfere With Administration of Internal Revenue Laws (I.R.C. § 7212); Fraudulent Returns, Statements or Other Documents (I.R.C. § 7207); Identity Theft (18 U.S.C. § 1028(a)(7)), etc. Conspiracy to Defraud the United States, for example, is defined as follows: If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.f "Conspiracy to defraud the government is a very broad concept." Tax Crimes Handbook at 132. Conspiracy to defraud the government is not limited to efforts to obtain money or property, but includes conspiracies where the object of the conspiracy is to obstruct, impair, interfere, impede or defeat the legitimate functioning of the government through fraudulent or dishonest means. Thus, conspiracy to defraud is not confined by reference to common law definitions of fraud. It is a separate crime to interfere with the lawful functions of the government without regard to the monetary consequences. Thus, § 371 involves both efforts to defraud the government of funds as well as interference with the lawful function of the government. The conspiracy to defraud prong of § 371 includes conspiracies to impede, impair, obstruct or defeat the lawful functions of the Treasury Department in the collection of income taxes. United States v. Klein, 247 F.2d 908, 915 (2d Cir. 1957), cert. denied, 355 U.S. 924 (1958). Arguments have been presented that § 371 was not intended to encompass conspiracies to violate the internal revenue laws or conspiracies to defraud the Service but these arguments have been rejected. Although decided in 1957, Klein is the leading case regarding conspiracies to impede and impair the Service and such conspiracies are commonly referred to as "Klein conspiracies." In Klein the defendants were acquitted of the tax evasion charges but were convicted on the conspiracy count. The wording of the conspiracy count read, in part, as follows: "... to defraud the United States by impeding, impairing, obstructing and defeating the lawful functions of the Department of the Treasury in the collection of the revenue; to wit, income taxes." In part, it was alleged in Klein that as "part of said conspiracy that the defendants would conceal and continue to conceal the nature of their business activities and the source and nature of their income." The defendants concealed the source and nature of their income by altering and making false entries in their books, filing false income tax returns, and providing false answers to interrogatories. Thus, a money laundering plan may result in a conspiracy to obstruct the Treasury. United States v. Sanzo, 673 F.2d 64, 69 (2d Cir.), cert. denied, 459 U.S. 858 (1982). In Sanzo, one defendant argued that there was no direct evidence that the other party to the plan would not report the laundered money or claim deductions. The court felt there was enough circumstantial evidence from which the jury could find that the defendant knew his accomplice would not report large sums of laundered money as income and that he would have to falsify business records to hide the laundering activities. Sanzo, 673 F.2d at 69. Note, it is not necessary to prove that the Service was actually impeded in its efforts to assess and collect the revenue. Tax Crimes Handbook at 132-136 (in the pertinent parts, with most citations omitted). Caveat Regarding Legal Alternatives It is also worth noting that there are legal ways for person A to transfer money to person B without making it apparent, for example, in his check book or on his tax return that the funds were transferred to person B (exactly how is beyond the scope of this answer). Generally speaking, they are distinguishable because the IRS is fully and accurately informed of what is going on in a way that the IRS is not allowed to disclose publicly. But, the crude method used here does not achieve that end. | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. |
Would an antivax tax violate the Canada Health Act? Legault’s plan, however, is markedly different in that rather than simply limiting the activities of the unvaccinated it imposes a financial penalty on them no matter where they are or go in their daily lives. It’s a “fine” as much as a “tax.” And whatever you call it, legal scholars are already warning Legault’s plan could violate the Canada Health Act because it would require some people to pay a special fee to access the public health system. They point out that Canada currently does not penalize people for declining a certain medical treatment even if that results in a cost on the rest of society. And they say it shouldn’t start now. A different alarm is being sounded by the Canadian Civil Liberties Association. It says Legault’s tax could violate the Charter of Rights and Freedoms’ guarantee of security of the person, which gives individuals autonomy over their bodies and medical decisions. The association is also worried by the possibility — remote though it might seem — that unvaccinated people who don’t pay the tax could be jailed. https://www.therecord.com/opinion/editorials/2022/01/14/quebec-anti-vax-tax-may-go-too-far.html This article seems to suggest it's against it, but I am not sure if I can trust the author of that article. Is it really against the law or not? | There is not enough detail on the plan to say anything yet. But it is important to understand that the Canada Health Act is not an obligatory law but outlines conditions for provinces to receive significant federal contributions to their budget. Even if the conditions are breached, the federal government would be the only one who has the power to do anything, unlike a Charter violation that gives individuala a cause of action. It likely does not breach the prohibition of user charges: 2 [...] user charge means any charge for an insured health service that is authorized or permitted by a provincial health care insurance plan that is not payable, directly or indirectly, by a provincial health care insurance plan, but does not include any charge imposed by extra-billing. [...] 19 (1) In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, user charges must not be permitted by the province for that fiscal year under the health care insurance plan of the province. [...] since the plan is to impose a financial charge on all vaccinated and such charge is not tied to their access to or actual usage of the public healthcare system. The accessibility criterion may be another ground of breach: 12 (1) In order to satisfy the criterion respecting accessibility, the health care insurance plan of a province (a) must provide for insured health services on uniform terms and conditions and on a basis that does not impede or preclude, either directly or indirectly whether by charges made to insured persons or otherwise, reasonable access to those services by insured persons; [...] But again, it is the access or the provision of services that matters, the other side of equation is not directly touched except that any charge or other measures, if there is any, should not impede or preclude reasonable access to healthcare. However, even if it does not violate the letters of the law, it violates, in my opinion and when framed like a tax on unvaccinated, the spirits of a universal, accessible health system underpinned by the Act, which is one of the political arguments against the plan. It would be much harder to argue against the fiscal equivalent, though. A bonus for vaccination would likely be much more politically and legally acceptable and less controversial. | It is not legal to give false responses on such a declaration. The point of anti-discrimination laws is that they say when it is legal vs. not legal to discriminate against an employee, and Alex is expected to have faith in the legal system to protect his legal rights. Dissatisfaction with the outcome of the law may be understandable, but still does not legally justify falsifying information given to an employer. In certain cases (look for the fine print and mentions of "penalty of perjury") you can be fined and imprisoned for lying. More commonly, your employment can be terminated when you are discovered. You may also be held liable for consequences of such lies. Your employer's health insurance contract might require truthful and accurate reporting of medical facts and a lie about your condition could result in termination of coverage. | Do vaccine mandates amount to religious discrimination? The term "vaccine mandate" is not sufficiently clear to tell, in a vacuum. Is it a mandate to get a vaccine? A mandate not to serve an unvaccinated individual in a public place? A mandate to vaccinate children that attend public schools? A mandate to serve unvaccinated individuals at public accommodations? Or what? The details of the mandate, how it was enacted, and the circumstances under which it is being challenged, are all critical to determining its legal validity. As noted in the linked answer (text reordered for clarity): Under the US Constitution, a public health authority could even make vaccination mandatory, and this was done in some historical epidemics. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the US Supreme court held such mandatory vaccinations to be constitutional. . . . In Zucht v. King, 260 U.S. 174 (1922) the US Supreme Court upheld as constitutional a public school district's exclusion of unvaccinated students. . . . In Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380 (1902) the US Supreme Court upheld as constitutional an involuntary quarantine law. Likewise, facially neutral health and safety regulations of businesses are generally valid even if they disproportionately impact members of a religion, under the First Amendment to the U.S. Constitution (and as it is applies to state and local governments under the 14th Amendment to the U.S. Constitution). The Religious Freedom Restoration Act of 1993 tips the balance somewhat to make accommodations in some circumstances to facially neutral laws that disproportionately impact the free exercise of religion, but still does not prohibit facially neutral laws that serve a compelling public purpose from burdening the free exercise of religion. The core language of that Act which sets forth the substantive standard in those cases states that: SEC. 3. FREE EXERCISE OF RELIGION PROTECTED. (a) IN GENERAL.—Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) EXCEPTION.—Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (c) JUDICIAL RELIEF.— A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. The standards referenced in the act tap into well established case law that was previously applied less broadly than under the Act, when the U.S. Constitution alone, unaided by the Act, was implicated. Could a restaurant refuse to serve unvaccinated individuals, even including those with sincere religiously-founded anti-vax beliefs? Yes. Usually, businesses can establish facially neutral rules even if they have a disparate religious impact. Generally, private businesses do not have an affirmative duty to serve anyone. Certainly, it could do so as a matter of company policy, if the law did not forbid discrimination specifically on vaccination status (which it currently does not in most or all places in the U.S., although there may be recent legislation on this of which I am not aware). For example, it is legal to operate a restaurant that only serves bacon cheeseburgers and operates 7 days a week, all year long, without holidays (in many places that lack blue laws for restaurants), even though this effectively denies service to strictly observant Jews, Muslims, Hindus, and (on Fridays during Lent) to observant Catholics, and could make it an uncomfortable place for such workers to work. The harder question is whether the restaurant could serve an unvaxxed individual when the business and the customer both want to do so, and both have sincere religious beliefs that cause them to feel that they must do so (the business owner might have sincere beliefs about serving everything, the customer might have sincere beliefs about being unvaxxed for religious reasons). Even then, when religious people aren't singled out for being religious, this requirement might be upheld if there was no alternative that meets the public health goals of the requirement, although the case that there could be some alternative that is less restrictive might be pretty good. | In general, a "mandate" is not a legal term. It can refer to any situation is whch people are "required" to do something, such as wear masks or become vaccinated. A mandate can come from a private business, that imposes rules on customers; it can come from a business that imposes rules on employees, it can come from executive action not directly authorized by any law, it can come from a regulation authorized by some law, or be directly imposed by law. Mandates imposed by law or regulation are likely to be enforceable in court, depending on their exact terms. Mandates imposed by executive action may perhaps be enforced in court. Mandates imposed by private businesses can often be enforced by the business ejecting a customer, refusing to deal with an entity that does not comply, or by disciplining or discharging an employee. In each case the exact terms of the mandate will matter, and may define how it may be enforced. | 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. | Article 640 of the Italian Penal Code under the heading "Crimes against property by fraud" begins (via Google Translate): Anyone who, by artifice or deceit, by misleading someone, procures an unfair profit to himself... And the article (cited by the OP in a comment) says the suspect... ...worked in the health sector and had been suspended from his job because he had refused to be vaccinated against COVID-19. The jab is mandatory for all health workers. So, it seems the allegation is that he intended to "profit" by gaining a COVID-19 vaccine certificate and therefore unjust employment after attempting to use the silicone patch to deceive the health worker. Edit following @jkej's comment observing that the alleged unfair profit was never actually procured. The more likely charge - depending on the actual evidence - would seem to fall under Article 56 which begins under the heading Crime Attempted (again via Google Translate): Whoever carries out suitable acts, directed in an unequivocal way to commit a crime, is liable for an attempted crime, if the action is not carried out or the event does not occur. | This might be legal to do with patients in some places, but it is probably not legal to do in general, although it might be hard to enforce the laws prohibiting this conduct against a provider in Pakistan. Different countries and sub-national governments regulate providing therapy differently. Some don't regulate it all, so you would only have to comply with the law of Pakistan on the subject, if any. Other places require an occupational license to provide therapy, and in those case, the law of the place where the patient resides could apply that licensure requirement based upon where the patient resides, where the therapist is located when the service is provided, or by some other rules. You would have to determine this on a jurisdiction by jurisdiction basis to be legal. Many jurisdictions also have VAT or GST taxes that would apply to fees collected for therapy services provided to someone in their jurisdiction, and this would also be a compliance issue if there was fee for the therapy. As a practical matter, you would also have to consider if there was any meaningful way that you could be punished for providing therapy services or not paying taxes in particular jurisdictions where some patients might reside or be receiving your app's services. If there was no meaningful remedy for violating those laws against your company in Pakistan, you might decide to ignore those laws because you could. | There are, as far as I know, no "FDA-approved" vaccines against covid in the US. The FDA has given Emergency Use Authorization to some vaccines. This does not currently include the Johnson & Johnson vaccine. It is impossible for a person to get the J&J vaccine in the US, because it is not authorized, and J&J does not distribute it. One could imagine an unauthorized foreign vaccine being smuggled into the US, but it would be illegal to distribute it. I assume that you specifically mean, can a person refuse to get a vaccination on the grounds that it only has an emergency authorization and is not actually approved: and can one sue an employer for firing you because you refused to get vaccinated? In general, the employer can fire for anything they want, unless you have an employment contract that limits the grounds for termination. There are discrimination-based grounds that they cannot use, such as race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information at the federal level. Mississippi has no specific employment discrimination laws. Other that that, an employer can fire an employee for any reason, or no reason (Mississippi is what's known as an "employment at will" state). There are some state restrictions where it is prohibited for an employer to fire an employee for engaging in a specific required activity such as being called for jury duty or being called to military duty. An employer could not require an employee to break the law, but that is not applicable here. |
Employer underpaid and overpaid me So my old employer contacted me recently and said they had accidentally paid me for the month after I had left. I checked my accounts and this is true - they paid me for the full month rather than just the week they owed me. However in the process of finding this I went through all of the payments they made to me and noticed they seem to have underpaid me for my first two months and week of work. Overall it would still work out I owe them - but not the full month worth of money they are probably going to ask back. I'm just wondering where I legally stand on this, can I rightfully ask they take into account what they owe me and not take back the full month (minus 1 week) worth of money? Is this something I can negotiate with them or do I need to get a lawyer? Thanks. | There is probably no harm in trying to negotiate it with them by explaining the issue to them (ideally in writing with attachments to back it up). If no agreement can be reached, a lawyer might make sense, but given the relatively low stakes, a lawyer's fees could exhaust much of the amount in dispute and if you didn't prevail that would be particularly disappointing. | Get a lawyer. That employer is skating on very, very thin ice. You can’t have a non-compete agreement in Germany at all without the employer paying reasonable compensation. What is reasonable is decided by courts, but half your last regular salary is not “reasonable”. Especially if this would endanger your status of being allowed to work in Germany. If you were a non-German EU citizen, any non-compete agreement would be immediately invalid because it violates the right of free movement; how nonEU citizens are affected, I don’t know. The rest of the agreement seems quite illegal to me. I would think that any good employment lawyer would love to take your case. | The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot". | Since this is a board about law, the legal answer is that New Jersey does not regulate vacation pay: In New Jersey, employers are not required to provide employees with vacation benefits, either paid or unpaid. If an employer chooses to provide these benefits, it is only required to comply with its established policy or employment contract. The specific law cited by that web page is this one, which says that "Nothing in this chapter requires an employer to pay an employee for hours the employee is not required to be at his or her place of work because of holidays, vacation, lunch hours, illness and similar reasons." So whether your boss can count weekend days as part of your vacation will depend on your employment contract and the established policies of your employer. Unfortunately, that's not something this forum can provide advice on. | If the stranger was aware of the reward offer at the time of the return you have a legally binding contract - you made an offer to the world, money for return of the phone, and they accepted it by returning it. If they were ignorant of your offer and returned the phone then there is no contract and you do not have to pay: albeit at the cost of being a jerk. Of course, if they obtained your phone unlawfully (e.g. by stealing it) the contract is void. | It is not necessary for an agreement to be verbose and written by a lawyer, for it to be binding. There is some danger in having untrained people writing up agreements (they don't know the distinction between "what the law says" versus "what we had in mind"). The agreement is binding, but their interpretation of the contract language does not automatically prevail. The statement "ALL TUTORS ARE PAID 8 HOURS, unless told otherwise" is slightly problematic since it is not true (you can't pay time, you pay money for time spend). With no other statements about time and payment, and just looking at the words, this says that an employee will be paid for 8 hours work, period. Unless they say something different. That could mean "even if you work 20 hours, you only get paid for 8" (illegal under various labor laws), or it could be "even if you only work 2 hours, you get paid for 8" (the most reasonable interpretation). The interpretation "You are limited to 8 hours of work per pay period / contract" is not a reasonable interpretation: that isn't what the clause says. Such a limit could be clearly expressed ("can work up to 8 hours" is a clear way to state the limit), and since they didn't say anything like that, that is not how the courts will read the clause. They can, however, inform you otherwise, e.g. say "your minimum automatic pay is now 2 hours", or "we will only guarantee 2 hours work", and at that point that's what the number is. Since this is (presumably) a take-it or leave it contract which they wrote up and you didn't actually negotiate, any unclarities are legally interpreted in your favor. If you have worked more than 8 hours and they are using the contract language to argue that you won't be paid for the overage, that is not at all likely to hold up in court. Under terms of the contract (interpreted as stating a minimum guarantee of hours), they can inform you that your new minimum is 0 hours. Also, unless there is some kind of tenure clause, they can terminate the contract at will, and maybe they'll hire you under a different contract. What the terms of employment were for you in the past does not matter, what matters is what the current terms are. If you did not pay attention to the fact that they changed the terms of the agreement as of this quarter, that is not their problem. If they decided to change to "actual hours worked" after the current contract was formed, and they informed you of that fact later, then thereafter that is what the agreement is. Until you are notified of that change, the guaranteed minimum is what it says in the contract. In case their argument is "The university sets this policy, the department made a mistake in not informing you", the university has to take responsibility for the errors of their inferiors. | Your tax advisor was legally correct, but perhaps not very savvy. Unfortunately, the best way to resolve this sort of situation is to avoid it: You should have insisted your employer stop withholding for PA as soon as you moved out of state. Once someone else has possession of your money the burden is on you to get it back, and the burden can be (practically) quite high before it runs afoul of any serious laws. The fact is that your filings are correct, and the PA Department of Revenue is being ridiculous. If they can't be satisfied with reasonable and adequate evidence backing your return you can file administrative appeals at little cost in hopes of reaching a more reasonable agent. However, if I were in this situation, since NC's tax rate is higher, I would just amend my NC return to claim a credit for taxes paid (even though erroneously) to another state. (This takes advantage of our federalist system and your state citizenship and puts the burden on NC to collect the "correct" difference from PA if they care enough. You also don't have to fight for the actual return of money with your new state because presumably you will owe them taxes again this year, and if they haven't returned what you claim you're owed then you just deduct it from what you owe this year.) | if a manager emailed an prospective employee a contract containing the pay rate of $20/hr, if the prospective employee crossed out $20/hr and replaced it with $25/hr, then went to work and gave the manager the contract which he failed to carefully read, continued working for a few months, would the employee be entitled to $20/hr? A party ought to timely alert or notify the other counterparty about any disagreements or proposed changes. This is especially recommendable when evidence suggests that the counterparty's expectation that the party only would sign the contract was reasonable. In the example you outline, the employee's unilateral alteration of the compensation/rate in the contract seems unlikely to favor the employee's position. That is because typically employer and employee negotiate compensation prior to formalizing their agreement. In that case, the employee would need stronger evidence with which to overcome the employer's credible argument that he did not knowingly accept the altered rate. |
I'm working on a game and want to reference some other games and movies. How much trouble could I get in with the examples below? I'm wondering what trouble a game developer could get into with making references to other things that served to inspire the dev. Suppose the dev plans to sell the game; would such references possibly cause issues later down the line I refer tpo references such as, for example: drinking bird (Alien movies) Glasses with "A. Wesker" written on the side (Resident Evil) A brochure that advertises The Overlook (The Shining) Newspaper talking about a shark killing "Martha Vineyard", aged 75 (Jaws) One of the lockers has the name "S. Henriksson" (Cry of Fear) Book titled something like "The favourite fellow" by Charles L. Ray (Chucky) | In general this kind of brief literary reference is not unlawful, and such things occur in both novels and commercial games with some frequency. Making such a reference a major part of the plot, such as by using a name from a previous work as a major character, particularly if other aspects of that character are also used, is far more likely to cause a problem. In the united-states this would be a matter of fair use. In general, when only a very small part of the source work is used, such a a single name; where the use is "transformative", that is used for a rather different purpose than in the source work; where the use does not harm the market for the original work; and where the use does not serve as a replacement for the original, it is likely to be held to be fair use. But fair use decisions are always fact-dependent, and are made case-by-case, so it is hard to be absolutely sure of one in advance. But the kind of literary reference described in the question is very unlikely to be held to be copyright infringement. | Is this legal? Generally yes, unless it unlawfully exceeds the scope of the license. Also, if it is, how can I check if it's permitted by the original store's EULA? Read the whole EULA, focusing on terms related to resale, assignment, and transferability. | Unless the game is out of copyright, e.g. chess, snakes and ladders, Go, or checkers, your software would probably be considered a derivative work of the copyrighted game and an actionable infringement. The fact that you do not monetize it is not a defense. You would need written permission in the form of a license agreement from the copyright owner to do this legally. The penalties for violating copyright laws in this way could be punishingly serious. | A statement by a fictional character is part of the fiction, and so is normally protected by copyright. A short exclamation such as "You are not prepared!" might be ruled to be too short and not sufficiently original to be protected if it were used separately, but that would apply just as much to a short statement that was not a quote from a character. But something like one of Gandalf's speeches on "mercy and pity" to Frodo in Chapter 2 ("The Shadow of the past") in book 1 of The Lord of the Rings would clearly be protected. The longer and the more distinctive such a text is, the more clearly it would be protected. Whether it is put in the mouth of a character or is part of the narration makes no significant difference. Note, in a copyright sense a statement does not "belong to a particular universe", rather it belongs to a copyright owner, often the author, or in the case of a video game quite likely thy publisher. As this comment by Kevin mentions, and as I should have mentioned, reproducing a short quotation from a work of fiction, particularly if properly attributed, is quite likely to be fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more specific details. See also the threads tagged fair use If a quote is used for a different purpose than the original, in what is called a "transformative" manner in copyright cases, then it is more likely to be held to be fair use. The smaller of a percentage of the source item the quote is, the more likely it is that it will be considered to be a fair use. The less the use of a quote serves as a replacement for the source, or harms the market for the source, the more likely it is to be considered a fair use. See the links above for more detail. | First off, the work is almost certainly not in the public domain in the US. Works are generally copyrighted upon creation or publication, but in this case the work was probably explicitly copyrighted. The fact that a work is out of print generally has no bearing on its copyright status. US copyright law changed several times in the last century. The 1985 copyright year means the board game was probably published then, and it's since it's a Disney copyright it's a corporate work, which would give it a copyright term of 95 years, meaning that it should be covered under copyright until 2080. See this factsheet on copyright from the US Copyright office. Works Created on or after January 1, 1978 For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter International laws will vary, but many countries adhere to the Berne Convention, which means that international laws will probably be at least similar. Either way, the work isn't very old from an intellectual property perspective. Fair use is an exception to copyright law that allows portions of copyrighted works to be used without permission or compensation in certain circumstances; academic or scholarly use is one of them. Generally, your use of the work has to be the minimum necessary amount to serve your purposes, and cannot harm the commercial value of the work. (The fact that the work is out of print may help with the latter.) The problem with fair use is that it's always determined on a case by case basis. The only way to know for sure if a particular use is fair use is to wait for the copyright holder to sue you and then make a fair use defense in court. I was going to suggest that you discuss this with the editor of your journal, but re-reading your question it looks like you're planning to publish to a personal blog rather than an academic journal. In the end, it's up to you (or your attorney, if you choose to hire one) to analyze the relevant legal concepts and rules and decide if and how much of the work to use. | Copyright infringement requires copying. The inventor could very reasonably invent a device without any reference or even knowledge of the artistic depiction in the Portal games. If the inventor hasn't copied anything, they aren't infringing copyright. Also, with respect to 2d depictions of 3d objects, only architectural drawings are protected in that way: https://en.wikipedia.org/wiki/Copyright_in_architecture_in_the_United_States With respect to your patent question, Valve hasn't publicly disclosed how to make a Portal gun, so an inventor of a Portal gun would not be blocked from patenting it. You can't get a patent without describing how to actually make the invention. | A bankrupt company's assets are transferred to its creditors. This includes intangible assets such as trademarks, copyrights, and other intellectual property. Whoever ends up with the rights to the game can continue to market and distribute it, or use legal means to prevent others from doing so. | if I directly purchase this custom content... As a general rule, "intellectual property" is very different from tangible property - arguably, "intellectual property" is a misnomer. Trying to apply concepts from property law (such as "a thing has a single owner, who can do anything not illegal with it as they please") is fraught with danger. You would generally not "purchase content", but rather purchase a license for the content, allowing you to do various things. One of those things might be to "curate/edit this collection of recordings and present it publicly as an art project (probably just online)". Another might be to "to sell or otherwise profit from this". All that depends on what your contract says. In an ideal world(?), contracts would all be detailed enough to leave no uncertainty about what is allowed and what is not. In the real world, a bunch of SMS can form a contract. For instance, the following is a contract: A (version 1): Hey B, could you send me a clip of you waving at the camera? I will pay $10 for it. B: sure ...but it’s not clear what A and B agreed as to what the clip would be used for. Saving and viewing on A’s device, probably yes; putting it in fullscreen in the next blockbuster movie, probably no. Showing it to A’s friends, putting it in an art project? That’s getting dicey. You might have heard about "work for hire" granting full copyright control to whoever pays for the work to be created. In the united-states, the above exchange does not explicitly designate the content as work-for-hire, as would be required by 17 U.S.C. § 101 ("...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire"). Here’s a better SMS contract: A (version 2): Hey B, could you send me a clip of you waving at the camera? I will use it to make an art project, collating many such clips, and publishing that on the internet. I will pay $10 for it. B: sure Here there’s no question that B agreed with the proposed use. On the other hand, it’s likely than a different use would be deemed a copyright violation - the contract was proposed by A and should be understood as limiting A’s right to use the clip to exactly what they said they would do. If they wanted it to say something else, they could have sent a different SMS (see contra proferentem). |
Do parents have a right to publish photos/videos of their young children without consent? The Reddit discussion AITA for deleting my newborn son's instagram? soon reached In about 5 years or so I’m ready for the sh**storm when all these kids become teens and get (rightfully) angry that everything about them growing up is on the internet and similar comments (e.g baby's first poop, or other potential embarrassing incidents). Question: upon reaching adulthood, does a person have any legal recourse against a parent who publishes their photos or videos of them to social media without the child's consent? If I have to state a jurisdiction, then I will plump for the USA, but information about other jurisdictions is certainly welcome. | united-states In some countries there are laws prohibiting publishing a person's picture without that person's consent. The US has no such general rule, and many other countries do not either. The details of such laws, where they exist, vary from country to country. In the US there are two kinds of legal action that might be used by a person to stop that person's image from being published. These are a suit for invasion of privacy, and a suit to enforce a person's right of publicity, also called a right of personality. These torts vary from state to state, and are not recognized at all in some states. Invasion of Privacy This has several variants, such as "intrusion upon seclusion", and "disclosure of private facts". Intrusion generally applies when someone has entered a private place, such as a dwelling, without permission, and has then taken a photograph, made an audio or video recording, or perhaps a written account, and has published or attempted to publish the image, recording or account. If and only if the publication would be "highly offensive to a reasonable person" then the subject or lawful occupant of the place invaded may be able to obtain money damages, or an injunction against publication. This would not apply to the fact pattern in the question, because the parents would have had a right to be in their own home, or anywhere that such baby photos are likely to have been taken. Intrusion can also apply to one who observes private activities without permission, even if no recording is made. But the "highly offensive" standard still applies. A "private facts" case generally applies when a person (or a small group, such as a family) has attempted to keep certain facts private, but some other person or business has published them (or attempted to publish them). A successful suit will in most states that allow such suits require evidence of some positive effort to keep the facts private, and that the publication would be "highly offensive to a reasonable person". This might possibly apply in the fact pattern described in the question. But note that the "highly offensive" standard applied to both of these privacy torts. Most typical baby pictures would not be considered "highly offensive", this is a fairly high bar. It would be a decision ultimately made by the jury or other finder of fact, I believe. For comparison, peeping on a couple having sex in a hotel room has been found to be highly offensive. When a person had sex with another, and had secretly arranged to record a video of the sexual encounter, and later distributed it, that was found to be highly offensive. Right of Publicity This generally prohibits using a person's, name, image or likeness, or "persona" to endorse or advertise anything, or for other commercial purposes, without consent. It is most often applied to unauthorized celebrity endorsements. Most US states have some form of this, but the details vary significantly. Unless the baby pictures were being used to advertise something, or in some commercial manner, this would not apply. If the parents sold baby pictures to someone who used them to advertise, say a day-care, or some baby product, this might apply, although it might be that the parents would be held to have had the right to act as the child's agent. If someone else downloaded the baby pictures from Facebook (or any other such site) and used them in ads, this might well apply. Conclusion It is unlikely in the US that a child could successfully take legal action against a parent for having posted pictures of the child, even if they were embarrassing, unless they were also "highly offensive". Even then such a suit would be unusual, and might not be successful. It is more likely that a request to the parent would be successful, unless the parties are on vary bad terms. A request to the site to take down such images might work, depending on the site's terms. A DMCA takedown would not work, because the subject does not normally hold copyright to an image, the photographer initially does (unless it is a work made for hire, in which case the employer initially does). This conclusion is specific to US law. The outcome would be different in at least some other countries. | Let's put to bed the myth of privacy that is at the heart of your question: in R v Sotheren (2001) NSWSC 204 Justice Dowd said “A person, in our society, does not have a right not to be photographed" So they can ask you to stop; its bad manners if you don't but it is not illegal. If they are the controller of the property then they can stop you filming from their property but they cannot stop you filming into their property from outside (either public land or land where you do have permission). See How do laws affect photography of non-humans in public when people may be in the frame? | Permission is not a physical thing that disappears when a piece of paper evidencing that permission is lost or handed to another party. When someone gives you permission as part of an agreement having the necessary characteristics of a contract, then the revocation of that permission is governed by the terms of the contract itself and your jurisdiction's contract-law. You may not need any permission to use the photos you paid to have taken. (For example, in the U.S. if they were taken in a public place and you are not displaying them for profit.) Or, you might need permission due to various rules or laws protecting minors – only an IP lawyer familiar with your jurisdiction can confirm this is the case – and, unless it was drafted by a competent lawyer, it is quite possible that your "permission statement" was legally insufficient or defective. Or, you might have legally secured necessary permission and still have that permission even though you handed the "permission statement" back to the parents of the subject. In practice: Only a lawyer in your jurisdiction can offer an opinion on which of these scenarios is in fact the case. And only via litigation can you establish further confidence that legal opinion is correct. | I'm pretty sure that under GDPR, you can indeed request them to send all data they have on you. If it's a complex request, they may charge you something like £10. If they have a lot of data on you, they may list the categories of data they have and ask you to pick one, rather than them having to collect and send everything. They should respond within one month, but iirc in the UK implementation, they can inform you (within that month) that they will respond within three months instead. For the rest, I only know current Dutch law. GDPR is not that different from what we already had (in general terms) and in many cases it even extends it. Under our law (WBP), you can also request a correction of the data in case it is incorrect, or deletion if they no longer need it for the purpose for which it was collected and stored. I don't really know how that works out in practice though, as Facebook can of course claim that "being able to connect you to your friends when you sign up for WhatsApp or Facebook with that number" is a legitimate purpose (in their eyes). They might also not have your full name and therefore not be able to connect your data to your request. Or, perhaps, they have only your full name (and there are probably more people with your name), so they'll have a hard time verifying that it's really your data which they would be handing over or deleting. The company is required to verify your identity before acting on your request. How they implement that is up to them. Under Dutch law, if I remember correctly, any data that can be connected to your person by any party is personally identifiable information (PII). While Facebook might not be able to find who's behind a phone number, your carrier most certainly can. Therefore, the data falls under PII protection laws and they will have to implement a way to verify you and get you your data. Finally, whether your local laws apply to Facebook, I don't know exactly. There's lots of information on this though, so you should be able to find it. Generally, countries say that if something happened within their territory (e.g. you signed up for WhatsApp while in the UK), their law applies. Companies, I've read, will instead try to claim that their main office is in SomeCountry and therefore SomeCountry's laws apply. But I'm pretty sure you'll be able to find a Facebook office somewhere where GDPR applies, so that's probably fine. While not an exact answer and while I am not sure about everything, I hope this gave you some pointers to go on! | The relevant law in England and Wales is the Protection of Children Act 1978. Under section 1 of the Act, it’s a defense to distributing, showing, or possessing indecent images of children if you had a “legitimate reason” to distribute, show, or possess them. It’s also a defense if you had not seen the images, didn’t know they were indecent, and didn’t have any cause to suspect they were indecent. However, the 1999 case of R v. Bowden held that downloading a digital copy of an image counts as “making” an image. This is not subject to the “legitimate reason” defense by statute (although I don’t know if it’d count as “making” if you have no reason to know the contents, like if a computer repair shop backs up a customer’s hard drive without looking at what’s on the drive). However, it is explicitly still subject to defenses in sections 1A and 1B of the Act. 1A covers spouses and partners. If you are the spouse or partner of a child between 16 and 18, then with their consent you can legally make indecent images of them (although this doesn’t apply if anyone but the two of you is in the image). You can also possess those images with their consent and give them a copy. Section 1B covers criminal proceedings, investigations, etc., and was added after R v. Bowden. Because copying a digital image counts as “making” an image, it would generally be illegal for people to work with digital copies of indecent images even if done for a good reason. To avoid that, Parliament made an exception for making an indecent image when necessary to prevent, detect, or investigate crimes, as well as for criminal proceedings anywhere in the world. Parliament also exempted the UK’s intelligence agencies (MI5, MI6, and GCHQ) when carrying out their duties. These are specific statutory exemptions, so they can’t really be generalized to “if you have a legitimate reason.” | 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. | united-statestexas In the US, it depends on the consent-to-treat laws of the state. In Washington, under RCW 9.02.100, everybody has a right to reproductive privacy (be it contraceptives or abortions). Under the federal HIPAA privacy rule, the minor requesting contraceptives would therefore be "the individual", which means that disclosure to others requires consent from the patient. Given the supremacy clause, that's all she wrote for Washington. The majority of states similarly allow 16 year olds to request contraceptives. Texas Family Code §32.003 spells out the conditions where a minor can consent to their own medical treatment, which does not include the situation you describe, therefore parental consent would be required (which clearly implies parental notification). Furthermore, that law also says (d) A licensed physician, dentist, or psychologist may, with or without the consent of a child who is a patient, advise the parents, managing conservator, or guardian of the child of the treatment given to or needed by the child. Therefore in Texas there is no prohibition against informing the parent(s). (Note that in the Texas Family Code, "child" is a synonym for "minor", so this also applies to teenagers, not just small children.) Carey v. Population Services Int'l, 431 U.S. 678 is an important ruling regarding the rights of minors to make their own decisions regarding contraception, but it does not go so far as to declare that minors have a constitutional right to give consent to the requisite medical examination. | Does CCPA impact whether or not this is allowed? Probably not. Public schools are divisions of state government and there are limits to how much the federal government can dictate the operations of state and local governments. Limitations on whether public schools can monetize data collected from students (13+) would arise under state law. The state law could certainly expressly authorize the practice (and to some extent does already with profit generating sports teams and yearbooks). State law could likewise prohibit the practice. For the most part, state law is silent and it doesn't happen that much because it isn't very profitable. Is there different guidance for public (government-managed and nonprofit) vs private schools? The legal analysis is very different. I'm not as familiar with this area of law, however, and will leave that question to someone else. As a practical matter, private schools are in a very good position to obtain express consent to do so from parents and students, so that is usually how the issue is resolved, I suspect. |
Would there be legal implications in the US to modifying a real vaccine card with fake info? I know someone who received two doses of the vaccine, and so she has a real vaccination card. But she had substantial side effects from the second dose, and so doesn't plan on getting a booster. Her current plan, if boosters ever become required in her area, is to just add a fake third dose to her card. What is the legality of this plan (in the US)? It seems like the relevant federal law only forbids faking the government seals, which she wouldn't have to do because she has a real vaccine card. So absent additional legal restrictions on modifying such documents, would this violate the above law? On the other hand, it seems like it would be crime to bring such a forged record into New York, given their new law against forgery. Is this correct? | The relevant NY law originally said that "Written instrument" means any instrument or article, including computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person. The modification adds: For the purposes of this article, a card provided to a person by a vaccine provider indicating the date a person received a vaccination against COVID-19, the type of vaccine and its lot number, and bearing a government logo or other indication that it is created by a governmental instrumentality, shall be considered a written instrument. This is an unnecessary modification: a covid card is plainly a "written instrument". Working through the definitions of falsely made, completed or altered, we see that a covid card modified as described is a forged document, and always has been one. Actually using a forged instrument is a crime, and has been so, and even possessing one is as long as you possess or utter it "with knowledge that it is forged and with intent to defraud, deceive or injure another". So, (1) it is a crime in New York, (2) it has long been a crime in NY and (3) is probably a crime in other states, when there forgery laws are functionally equivalent to NY laws. For example, in Washington, RCW 9a.60.020 (1) A person is guilty of forgery if, with intent to injure or defraud: (a) He or she falsely makes, completes, or alters a written instrument or; (b) He or she possesses, utters, offers, disposes of, or puts off as true a written instrument which he or she knows to be forged. It does not matter if you forge a document in a state where it is legal (if any such state exists) and then transport it to a state where forged documents are illegal. If you possess it and intend to use it knowing that it is forged, it is a crime. | This could be a violation of 18 USC 1030 (and a crime). A number of things go into requirements for conviction under this law. First, it has to be a computer, which is defined as an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device Any printer that I have encountered in the past 40 years counts as "a computer". Second, (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—...(C) information from any protected computer; It is highly likely that the person printing has to receive some information from the printer, and respond accordingly so you have your "obtains information" element. Maybe not useful information, but information nevertheless. It also has to be a protected computer, (B) which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States Well, a computer connected to the internet is a protected computer, see US v. Trotter, 478 F.3d 918. Also, the access must be "without authorization or exceeds authorized access". The law doesn't explain with "without authorization" means, but the latter is defined as to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter If the law were stated in terms of "prohibited access", meaning "express denial of permission", and if the computer owner had set the computer to "prohibited access" by default (password protected), there would be no issue -- accessing the computer is prohibited. "Unauthorized" can also mean "has not been explicitly authorized", i.e. lacking any indication one way or the other. Every computer access is initially unauthorized, until authorization is granted; and re-trying a login after mis-typing a user name (and being denied access) is not a violation of this law. There does not appear to be case law that addresses the status of computers just left open to the public, and whether using a computer that is so exposed constitutes "unauthorized access". Also, it is not clear that the defendant in this case has "obtained information", since with printing, information flows into the computer. There is also a clause about recklessly causing damage, but I don't see what damage would result ("damage" is defined as "any impairment to the integrity or availability of data, a program, a system, or information"), and how printing would be "reckless". It seems somewhat unlikely that this would be deemed to be a crime, though if you experiment, you could be on the cutting edge of new case law. | It would be a violation of 18 USC 1001, which is the law against making false statements to the federal government. Paul Mozer, who was a Salomon Brothers trader, received a four month sentence for doing something along those lines in 1994. Bidding on something implies an intent to pay for the thing, which in this case is a falsehood: in so doing, one "falsifies, conceals, or covers up by any trick, scheme, or device a material fact" (that you don't intend to pay for the thing). | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. | This is a good question, which I am going to answer from a practical perspective, rather than a theoretical one, which would probably justify a law review article (applications of the takings clause to criminal justice fact patterns is actually one of my pet areas of legal scholarship, but a lot of it calls for dramatic changes in established practice and precedents reached from other perspectives, making it impractical to pursue in real life). I recently had a case along these lines in my office where my client's property was seized as evidence in a criminal case against a third-party. The crime involved a gun shop where all of the guns that were in the possession of the shop owner for repairs at the time of the bust (i.e. as bailments), including ours worth several thousand dollars in addition to having some sentimental value, were seized as evidence of charges against a shop owner who was fencing stolen goods, making sales to felons off the books, falsifying excise tax returns, etc. He seemed legitimate and had been in business for many years in what was not a fly by night operation. He had all of the proper licenses. Who knew we were dealing with a crook? In that case, we intervened on behalf of our client in the primary case to seek the physical return of the property (basically a replevin claim), as have others affected by the bust. It took a few months and some legal fees, but we prevailed without too much effort, as have the other intervenors. Generally speaking, to make a 5th Amendment claim, you would have to show a total taking and move into some legal gray areas in this context, while it is usually hard for authorities to show a continuing need for possession of third-party property in the face of a demand for its return, especially when photography and other scientific tools can document the evidence in great detail these days. In that case, showing that our client's particular gun was not involved in any illegitimate transaction also simultaneously made it less important as evidence, although that would not necessarily be true in general in these kinds of situations. There is a pending case in Colorado posing similar issues, where a suburban police department essentially destroyed a guy's home in order to catch a felon with no relation to the homeowner whatsoever, who had fled into it and taken refuge there. But, that case, as far as I know, has not yet been resolved on the merits. | In general, providing a false name or birthdate (DoB) is only actionable when there is a legal duty to provide the correct information, or when a provision of a contract to which the person agreed requires it. If the falsity is part of a common-law fraud, then it would be unlawful, and possibly criminal. In the cases listed in the question: Sign up for an online service with a false identity although the ToS requires an accurate identity: This would be a breech of contract. Whether there could be a successful suit for such a breech would depend on why the contract demanded an accurate ID, and what harm the lie did or might do. Use a false name at a restaurant or hotel, but with no intent to defraud or avoid payment. I don't think there is any duty to give an accurate name on a restaurant reservation. In some jurisdictions the law requires an accurate name be used on a hotel register, and valid ID presented. But such violations are rarely pursued, unless they are part of a fraud or some other criminal activity (theft, prostitution, or drug dealing, say). Giving a false name when opening a bank account or other financial account. In the US, and I think many other jurisdictions, the law requires accurate identification of all bank account holders, including a SSN, EIN, or TIN. It also requires a bank to make efforts to verify such IDs, and violation are prosecuted. There are legal ways to get an account under an alternate name such as a penname or DBA, but this must be disclosed to the bank and to the IRS. Other cases that occur to me: Giving a false name at a shop when not obtaining credit or avoiding payment: generally legal. Obtaining a credit card under a false name: Can be done legally if disclosed to the issuer. Giving a false name or DoB to a pharmacy for a prescription: unlawful if attempting to access the medical info of another, or rely on another person's history to get a prescription, but may be lawful if this is just an alias, such as a celebrity might use to avoid publicity. Unlawful if done to obtain a controlled substance, or if insurance fraud is involved. Putting a false name on a job resume: lawful, but if hired an I-9 form will require a valid name and SSN or TIN. Employers usually may not require that a DoB be provided. Giving false info as part of any credit application: usually considered fraud, even if there is no intent to avoid payment, as it can deceive the creditor as to the amount of risk involved; specifically criminal in some states. Giving a false name on a date: perfectly lawful, but may cause a problem if a long term relationship develops. Some states require a valid name on a marriage license. | IANAL, and I don't live in America, but some of this depends on their intent. If they gave the drugs away by mistake, they probably have not broken any laws. If they were given away deliberately (and you would need to prove this – which might be hard) then yes, he has broken laws. Either way, I expect you have a right to compensation (i.e. $900) from the physician to "make you whole again." If required necessary you could file for that in your local small claims court: The physician will either come to the party pretty quickly and sort it out, or the court will award you the money you need to buy the replacement meds. (But you will need to evidence the replacement cost, for a start....) | 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. |
Website cloning is legal? Is using CSS, Javascript, HTML, or images from other websites on our website illegal because the contents may involve trademark or copyrighted assets? I am using lot of partial or full content from other websites on my website because my website is about reviewing brands and websites, and commenting on the pro's and con's. Currently I am using iframe, object, wget, file_get_contents, cURL and javascript to scrape or clone partial or full website content for my personal use. I also generate revenue from using their content from advertising, SEO, affiliates and banners etc. Would I get penalized by law enforcement if they found me, because I am scarping and cloning websites without the permission of real website owner? And if it is illegal then why are there so many legal open source or paid software and applications for cloning of website like httrack, cyotek, webcopy etc? Wikipedia : https://en.wikipedia.org/wiki/Web_scraping#Legal_issues Stackoverflow : https://stackoverflow.com/questions/70697060/website-cloning-is-ethical-and-acceptable | Both the displayed site (including all text and images) and the html, css, javascript and other code that generates the display are protected by copyright. This is true in pretty much every country. You would not be able to reuse them lawfully without permission, unless an exception to copyright applies. If no exception applies, and you have not obtained permission, this is copyright infringement. In most cases copyright infringement is treated as a tort (a civil matter), not as a crime. This means that law enforcement generally will take no action and have no interest in such a situation. The copyright owner could sue for infringement, and possibly collect money damages. In the US, statutory damages can be as high as $30,000, or up to $150,000 for "wilful" infringement, or as low as $750 (per work infringed). Or actual damages can be collected instead. In other countries, actual damages plus costs of suit are more likely, but the rule can be different in each country. The possible exceptions to copyright vary significantly in different countries. In the US the major exception is Fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and I have a question about copyright. What should I read before I ask it? for more information In general short snippets of code can probably be used under fair use, but substantial parts of the code or the displayed site are less likely to qualify as fair use. And if it is illegal then why are there so many legal open source or paid software and applications for cloning of website like httrack, cyotek, webcopy etc? Most of these tools have legitimate uses, including learning how a site is constructed without distributing copied content; and cloning or partial cloning of a site with permission. Even if the tools were mostly used for unlawful copying, that might well not be a high priority for law enforcement, and cross-border law enforcement (which this in many cases would involve) is often much harder for the police and other authorities. | No. That would be in no way a bigger breach of copyright than creating yet another web browser. | is contract text itself subject to copyright? What are my options? It largely depends on the originality of your contract. C & J Management Corp. v. Anderson, 707 F.Supp.2d 858, 862 (2009) points to multiple references against preclusion of "a copyrightable interest in a contract". But you would need to prove that your competitor copied "original elements" of your contract including "a minimum degree of creativity and originality required to support a valid copyright". See Donald v. Uarco Business Forms, 478 F.2d 764, 766 (1973). Your post provides no information that would help identifying or ruling out this issue in your matter. Without realizing, you might have paid dearly for boilerplate language that your lawyer copied from somewhere else. Indeed, there is so much regurgitation and copy/pasting in the legal "profession" (judges included, as is notorious in judicial opinions they release and in the similarities --verbatim-- among the procedure law of many, many U.S. jurisdictions). That regurgitation is not bad in and of itself, though, since what matters is the expeditious administration of justice and the protection of your rights, rather than obtaining creative expressions authored by some lawyer. You might end up wasting valuable energy and money if you went after the competitor for something like this without first assessing the extent of originality in your contract. Focus instead on the much more detrimental fact that your competitor "plays dirty in general". | This would be infringement. It generally doesn't matter that you're giving things away for free. Keep in mind that the point of these laws is not only to prevent third parties from making money off the creator's ideas, but also to protect the creator's ability to make money. If you're providing free knock-off Winnie the Pooh products, that cuts into the market for the creator's legitimate products. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. | If you're in the U.S., then section 117 of the Copyright Act is likely what you're looking for. The U.S. Copyright Office says: Under section 117, you or someone you authorize may make a copy of an original computer program if: the new copy is being made for archival (i.e., backup) purposes only; you are the legal owner of the copy; and any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred. Based on the information you provided, it sounds like you meet all three of these criteria. They also note that your particular software's license agreement might include special conditions that affect your right to make a backup copy. Such a warning would only make sense if it was legally possible for the software distributor to make such a limitation, so I'm afraid the direct answer to your main question is "yes". It's definitely not the norm - at least in my experiences - but it is a possibility so you'll need to consult your program's license agreement. There's also a possibility that the company misunderstood you and was thinking that you were running a backup server (in the sense of a redundant infrastructure) and not making an offline backup of your entire server. It's quite normal to require an additional license for the former case. | Generally speaking, it is illegal for you to do this. Copyright gives the creator of the image the exclusive right to copy it, and just making copies to send to other people is probably not going to be fair use. Making copies without a license from the copyright holder would therefore be copyright infringement. Are there likely to be any consequences for doing this? Probably not. | Most of the question has nothing to do with the law, it's about technical how-to or how-does, which should be asked in Information Security SE. There are two possible legal questions: is it legal to break into a computer system and take a database of passwords, and it is legal to acquire such a database obtained by someone else. As should be known in the US, per 18 USC 1030, breaking into a computer is illegal in the US. Given that, it is extremely unlikely that Google illegally breaks into other computer systems to obtain passwords. The aforementioned law criminalizes accessing computers without authorization, not (just) "taking" stuff from computers without authorization. The law does not criminalize receipt of illegally obtained material. Passwords are not protected by copyright. If Google were to induce someone to break into a computer system to get passwords, that would be legally actionable, however there is no law penalizing innocent receipt of illegally-obtained passwords (insofar as they are not protected by copyright). It is not illegal to access the dark web, at least in the US (probably it is illegal in Saudi Arabia). Using stuff gotten from the dark web can easily be illegal (e.g. logging in to someone's bank account, or forging a passport). There are many services which monitor the dark web and report breaches, which is totally legal. |
In what countries can you *not* disclaim copyright? I'm interested in some of the legal issues around software licensing, but my question could apply to other copyrightable works too. Most free and open source software is copyrighted but distributed under some license that grants others the right to use it. Other authors instead opt to disclaim copyright entirely and dedicate their work to the public domain. There is some debate about whether this is a good thing to do or not, see for example this article from the open source initiative. In that article and others, I've seen a statement made that "Disclaiming copyright is only possible in some countries." In what countries can you disclaim copyright? In what countries can you not disclaim copyright? For example, this page seems to say that, under German law, copyright cannot be transferred from one person to another except by inheritance. Does that mean the dedicating a copyrighted work to the public domain is a meaningless statement in Germany? | australia Assignment and licencing of Copyright is dealt with in s196 of the Copyright Act 1968. Copyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law. Whether someone can renounce ownership of personal property under Australian law is not entirely clear. It appears that the answer is probably yes if the owner forms the intention to abandon it. However, that does not make it public domain and the copyright might be able to be claimed by the "finder" of the abandoned property. There appears to be no provision in the law for "destroying" the personal property that is copyright. Unlike, say, a car, it is not physically possible to destroy copyright. Notwithstanding, a copyright owner who purports to disclaim copyright has probably granted a permissive, royalty-free, non-revocable, non-revocable, perpetual licence to everyone and this would bind their successors in the copyright which is practically no different from a work that is public domain. Even if this were not the case, the copyright owner would almost certainly be estopped from enforcing copyright against anyone who had taken up their offer of "public domain". | The answer by Dale M. is correct, but a bit brief. "Selling" is not an exact phrase. What you do not want to do is to transfer ("sell") the copyright to the source code. If you did that, you would put yourself in legal danger because they now own the copyright to code that you use in other products, and can sue you for copyright infringement. However, you selling a copy of source code does not imply transfer of copyright in any shape of form. When you buy a copy of a book in a book store, the author's copyright is not transferred to you. Accepting this deal would put the other party in legal danger. Even if they have bought the source code, they still don't have a license to make further copies of it and sell those. This is why you need to license the software to them. In brief: Copyright grants the copyright owner a lot of rights. These rights are always licensed, not sold. The right that is relevant here is the right to create derivative works. A license is simply a contract between the two parties, describing a particular business arrangement in legally binding terms. If I were in your position, I would hire an IP lawyer to help drafting the license. But, basically, the license should say that you, as owner of the copyright to ABC software, grants XYZ company access to its source in its present form, and also grants XYZ company the right to create derivative works, but only for hardware platform DEF, and to create and distribute copies of their derivative work. | A prohibition on "translating the code to the other programming languages" is a prohibition on creating a particular type of derivative work. The right to create any derivative work is an exclusive right of the copyright owner. 17 USC 106(2) They can licence or give that right to you in part, and with limitations. You are limited from taking what would amount to a "substantial similarity" compared to the copyrightable elements of the original. For computer programs, US courts use the abstraction-filtration-comparison test. | There is no provision for automatically relicensing infringing works (for example, distributing a program that contains parts covered by the GNU GPL and that is therefore a derived work will not automatically place the infringing program under GPL, even if that is the expected way for derived works to comply with the license. Instead, the derived work becomes at the very least undistributable, as there are competing copyright holders that disagree. | Please Note: This was written before the title change of this question and may no longer be applicable According to the Harvard website: In Feist Publications, Inc. v. Rural Telephone Service Co. 499 US 340 (1991) the United States Supreme Court held that copyright does not extend to a mere compilation of facts. In this case, it was a telephone directory much the same as the one in ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996). Furthermore, the Court also ruled that something more than simple "sweat of the brow" labor was required before copyright protection would ensue, with some modicum of authorial originality necessary. Accordingly, it was held in Feist that copyright did not extend to a telephone directory, no matter how laborious a task its compilation was. The decision in ProCD v. Zeidenberg 86 F. 3d 1447 (7th Cir. 1996) is highly significant, therefore, in that it permits copyright or quasi-copyright protection to be extended to non-copyrightable material through the use of contract. One would have to consider each meta tag independently. For example, the "description" tag could by copyrightable since it is written for more than just the 'facts', such as a subtle advert for the site that is more than an objective description. However the 'og:type' would not be copyrightable since it would just be considered a fact. Now, if you are using it on another website and sourcing it properly, you could probably use it under "Fair Use" Uses That Are Generally Fair Uses Subject to some general limitations discussed later in this article, the following types of uses are usually deemed fair uses: Criticism and comment -- for example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment. News reporting -- for example, summarizing an address or article, with brief quotations, in a news report. Research and scholarship -- for example, quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author's observations. Nonprofit educational uses -- for example, photocopying of limited portions of written works by teachers for classroom use. Parody -- that is, a work that ridicules another, usually well-known, work by imitating it in a comic way. A copyright would exist on the image. One would have to know what license currently applies to the image to know for sure, however, the "Fair Use" to copyright would still apply. With Fair Use, the entity type that uses the image is important. There is much more leniency when a non-profit uses copyrighted information than when the information is used in commercial activity. (With, of course, more exceptions.) | Links are in French. As the author of a work, you would generally hold copyright unless there's a contract otherwise. L113 of the Code de la propriété intellectuelle determines who is the rights holder of a given work and I don't see anything there that changes things for you as a contractor. Even if you assigned some rights to your employer through a contract, France has moral rights which can never be ceded. In fact, even if you were a salaried employee, you still hold the rights by default, unlike the US. There are a few exceptions to that though: software, inseparable joint works, and works where the creative process was purely directed by your superiors. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. | 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. |
Impact of loser pays vs American rule The rationale for the American rule, as I understand it, is that you should be able to file a lawsuit that you think has merit without having to worry that you might lose and be on the hook for the other side's expensive lawyers. In loser pays, on the other hand, you could be on the hook if you decide to litigate an issue and lose. The advantage, it seems, is that you're less likely to litigate issues that you won't win. If we look at studies investigating the impact of the two rules, quantifying the economic costs and benefits of the lawsuits filed or not based on rule differences, is one of them a clear winner? Or perhaps, one of them wins in certain types of cases, but not in all types of cases? | Several scholars have addressed this issue. Here's a quick bibliography. It appears that the most relevant "experiments" are the imposition of loser pays in medical malpractice suits in Florida for the first half of the 1980s, and Alaska's loser pays system. The Gryphon article below includes and discusses a decent amount of empirical data; the Di Pietro et al report is very extensive and has a lot of data. The Florida experiment resulted in a significant increase in suits dropped without settlement or trial, a significant decrease in the number of trials, and, apparently, one spectacular fee award in favor of a plaintiff, which impelled the Florida medical establishment to torpedo the law. Susanne Di Pietro et al, Alaska's English Rule: Attorney's Fee Shifting in Civil Cases (1995), http://www.ajc.state.ak.us/reports/atyfee.pdf. Marie Gryphon, Assessing the Effects of a "Loser Pays" Rule on the American Legal System: An Economic Analysis and Proposal for Reform, 8 Rutgers J. L. & Pub. Pol'y 567 (2011). Douglas C. Rennie, Rule 82 & Tort Reform: An Empirical Study of the Impact of Alaska's English Rule on Federal Civil Case Filings, 29 Alaska L. Rev. 1 (2012). David A. Root, Attorney Fee-Shifting in America: Comparing, Contrasting, and Combining the "American Rule" and "English Rule", 15 Ind. Int'l & Comp. L. Rev. 583 (2005) (student article) (not available online). James R. Maxeiner, Cost and Fee Allocation in Civil Procedure, 58 Am. J. Comp. L. 195 (2010) (not available online). | 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.") | In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures. | Law is more like sport than mathematics You don’t know how it will turn out until you play the game. If a case goes to trial it’s because at both sides believe they can win. Both sides probably have good reasons for their belief. At least one of them is wrong. | Not only would it not be unethical to argue both sides of the issue, if the lawyer argued both sides of the issue and won on both sides, this would be proof that the lawyer is an excellent lawyer. Because the victory would be based on the lawyers skills and not on whether the law leans one way or the other. Speaking of ethics, I believe it would be unethical for a lawyer not to argue on behalf of one of his clients. A lawyer is required to represent each one of his clients zealously. If this means the lawyer has to argue both sides of an issue, as long as there is no conflict of interest between his two clients, then the lawyer must do so. Our system is an adversarial system. The system is designed to get a just result by having each side argue their own position in an adversarial setting. This means that the opposing lawyer could argue that the first lawyer is arguing both sides of the issue in different cases. However I believe a good judge would find that lawyer's argument to be irrelevant. Because the only arguments that are relevant would be the arguments based on the law and the facts of each individual case. In other words it would not be relevant for the opposing lawyer to argue that this lawyer frequently argues both sides of the case. As long as he is not doing so in this one specific case. | There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice. | I'm curious as to how the US legal system determines who should present evidence and how much evidence is required by them to prove one side of an argument against a counterargument. In General In both criminal and civil cases in common law legal systems (legal systems derived from the English legal system, basically, the U.S., U.K., Ireland, Canada, Australia, New Zealand, India, Pakistan and Bangladesh), the burden of proof is on the party seeking to have a court do something. So, if the absence of evidence, the party seeking relief loses. Proof Of The Elements Of The Charge Or Cause Of Action Presentation of Evidence and the Prima Facie Case The party seeking court action presents their evidence first. If at the close of their opening case that party has not presented enough evidence to meet their burden of proof with respect to every "element" of the list of legal elements that they must prove to prevail in court, that party has not established a "prima facie case" and the case is dismissed without granting relief. If the prosecution or party bringing a civil case establishes a prima facie case, or if the defense does ask to have the case dismissed for failing to establish a prima facie case at the close of the evidence of the party asking the court to do something, then the defense presents their evidence if the defense wishes to do so (this is optional). (If the defense does present evidence, the prosecution or civil party seeking relief can then present a rebuttal case to disprove the new points of evidence in the defense case, and so on, back and forth until all evidence is taken.) Evaluating The Evidence In Light Of The Burden Of Proof Once both the party asking the court to do something and the defense have presented all of their evidence, the trier of fact (i.e. the jury in a jury trial, or a judge in a bench trial) decides if every element of the case of the party asking the court to do something has been established by the relevant burden of proof. In a civil case, the burden of proof is usually a "preponderance of the evidence" (i.e. that the evidence more strongly favors that the element was established than that it was not established); some elements on some claims in civil cases must be established by the higher standard of "clear and convincing evidence." In a criminal case, the burden of proof is "proof beyond a reasonable doubt". Affirmative Defenses In addition to elements of a case that must be established to make a prima facie case, there are also "affirmative defenses" to a request that a court do something. Examples of affirmative defenses include self-defense, statute of limitations, immunity from suit, a pardon in a criminal case, etc. A defendant can win ether by showing that the party asking the court to do something has failed to meet their burden of proof with respect to one or more elements of the case, or by showing that an affirmative defense bars the request. In both criminal cases and civil cases, the burden is on the defense to show that there is at least some evidence that justifies consideration of an affirmative defense. This is called a "burden of production." In a civil case (and in some criminal cases in some jurisdictions), the burden of proof is on the defendant to prove an affirmative defense by preponderance of the evidence. In some criminal cases in some jurisdictions, once the defense has met a burden of production with regard to an affirmative defense, the prosecution must rule out the affirmative defense beyond a reasonable doubt to prevail. Deciding Who Wins Once both the party asking the court to do something and the defense have presented all of their evidence, the trier of fact (i.e. the jury in a jury trial, or a judge in a bench trial) decides if an affirmative defenses prohibit the party asking the court to do something from prevailing. The party asking the court to do something wins unless the defense can show that this party did not meet the burden of proof as to any one element of a particular criminal charge or civil cause of action (for each charge or cause of action), or that an affirmative defense bars that particular charge or cause of action. Often cases have conflicting testimony regarding what happened. The jury (or judge in a bench trial) can choose to belief that one person is telling the truth and that the other statement is either a lie or is unintentionally inaccurate for some reason. If the jury (or judge in a bench trial) isn't at all sure whose statement is true and whose is not, this favors the defendant if one is not more credible than the other. Complex Cases In a simple case, there is just one charge or cause of action, and there is just one defendant. But, often, there are multiple charges or causes of action, and each one must be evaluated as to each defendant of the multiple defendants in a single trial. In a civil case, sometimes there are counterclaims that defendants are trying to prove against plaintiffs, or cross-claims that defendants or counterclaim defendants are trying to prove against each other that have to be evaluated. Also, in civil cases, sometimes one or more of the defendants is also prosecuting one or more separate causes of action against someone other than the original plaintiffs or co-defendants. In that case, that defendant is also a third-party plaintiff, and someone other than the original plaintiff and defendants is a third-party defendant (third-party defendants can also bring third-party counterclaims against the third-party plaintiff, third-party crossclaims against third-party codefendants, or their own claims against new parties or against the original plaintiffs). Other Rules Special Statutes Regarding Proof Of Facts Sometimes, there are particular kind of facts for which a statute says that a "prima facie case" is established automatically if a certain kind of evidence is presented. For example, it is common for the law to say that a prima facie case regarding ownership of real estate, or the status of a bus as a school bus, is established by presenting a copy of an official document that says so. Usually, when a statute says something like that, the prima facie case can still be overcome, for example, by presenting a subsequent document that shows that the real estate was then sold to someone else, or that the school bus status of the bus was later revoked. But, when a statute like that is present, the plaintiff or prosecutor doesn't have a duty to prove the negative that there was no subsequent sale of the real estate or that the school bus status certificate was still in force on the date of the incident. Rules of Evidence There are also "rules of evidence" that govern what kind of facts can be presented at a trial to prove a case. For example, in a U.S. criminal trial a fact cannot be established with evidence that is hearsay, such as an affidavit or a statement that a witness heard someone else say and is retelling to the court. A very important rule of evidence in U.S. criminal trials that flows from the United States Constitution, is the evidence obtained by law enforcement illegally may not be presented by the prosecution, even if it definitively shows that a defendant is guilty. This is called the "exclusionary rule." Application To Facts Is it up to the prosecution to present full and complete evidence that the system only takes pictures when the bus is stopped (presumably reviewing source code or conducting tests) or is there some kind of legal concept of "good enough at a glance" evidence where they've met some minimum burden of proof that the picture is taken when the system is turned on and it's only on when the bus is stopped, therefore it must be functioning as expected? The prosecution has to convince the jury (or the judge in a bench trial) that every element of the crime as define in the statute has been proved beyond a reasonable doubt and that any affirmative defense upon which the defense meets a burden of production has been overcome by the relevant burden of proof. Usually, this is a broad legal standard, and the jury (or judge in a bench trial) has to decide if the burden of proof has been met by the facts presented which were legally admissible as evidence. It wouldn't be uncommon for a defendant to present no new evidence in a defense case (other than having cross-examined the prosecution's witnesses) and merely argue at the completion of the prosecution's case that the evidence presented didn't establish a particular element of the prosecution's case beyond a reasonable doubt. For example, the defense might argue that the picture presented by the prosecution was not taken when the bus was at a complete stop, and if the prosecution didn't present some convincing evidence that the bus was at a complete stop when the picture was taken (e.g. the testimony of the bus driver and other witnesses), the defense should win. But, it is almost always up to the jury (or the judge in a bench trial) to decide if the prosecution's evidence is good enough to prove beyond a reasonable doubt that the prosecution proved the case. Often a defendant will not want to call any witnesses beyond the witnesses presented in the prosecution case, because a defendant's witness might cause the jury to overcome its doubt that a fact only weakly proved by the prosecution was actually true, for example, when only one not very credible prosecution witness had testified regarding the same fact. If the identical case were presented to two different juries, one jury could decide to believe the bus driver who said that the bus was at a stop when the picture was taken, and a different jury could decide not to belief the bus driver, and both decisions would be valid. Consequences Of A Verdict If the judge or jury acquits the defendant in a criminal case, the case is over and there is no appeal. If the jury is hung (there is no unanimous ruling to convict or acquit (but see endnote)), in a criminal case, there is a mistrial and the defendant can be tried again. If the jury convicts, one of the grounds for an appeal by the defendant is that the evidence was insufficient to prove some element of the charge beyond a reasonable doubt, and if the appellate court agrees than the conviction is overturned and there can be a retrial (or in some cases, the defendant is acquitted). Appellate Review Of The Sufficiency Of The Proof The law recognizes that different juries could interpret exactly the same facts in different ways and will reverse a conviction because the burden of proof was not met only if "no reasonable jury" could have interpreted the evidence in a manner consistent with a conviction. For example, on appeal, an appellate court will always assume that the jury thought that every pro-defendant witness, whose credibility was questioned in any way by the prosecution, was lying and that the jury believed that every pro-prosecution witness was telling the truth, even if the defense presented evidence that could have caused a reasonable juror to question the truthfulness of a prosecution witness. Appeals for failure to prove something beyond a reasonable doubt can be easier in a bench trial than in a jury trial because following a bench trial the judge will often publicly state the actual reasons in terms of findings of fact and law that the judge used to reach a conclusion. So, the defendant need only show that a key fact actually found by the judge was not supported by the requisite proof. END NOTE Oregon State, and prior to 2019, Louisiana, did not require juries in all criminal cases to be unanimous. | No. Arbitrating rather than litigating when not required to do so by contract is almost never considered to be a legally compensable harm as a result of pro-arbitration legal policies. The consumer would be required to continue arbitrating and couldn't change course at that point. In practice, this fact pattern is unlikely, because the consumer needs the relevant details from the contract to commence arbitration. Other examples of unavailable contracts are hard to compare. It is a fact intense analysis. |
If somebody anonymously falsely reports that somebody on a given address has child porn, do the cops actually get a search warrant? Let's say that Joe hates John. Joe knows that John is security-aware and has encrypted all of his hard disks and storage devices. John keeps the decryption phrase in his head. Joe makes an anonymous telephone call or otherwise reports John to the police, claiming that he knows for sure that John has child porn. Will the cops now go home to John and demand that he gives the cops all of his hardware and tells them the decryption phrase for them to go through it in the headquarters? My skin starts crawling at the thought of my data being looked through by anyone, including cops, who might be making copies and then leak them due to malice or incompetence. Even if they find nothing illegal, John will feel extremely violated after that experience, and must assume that all of his data has been copied/stolen/compromised. He initially refused to tell them the decryption phrase, but they threaten to lock him up indefinitely if he did not. They may also have turned off their bodycams and smacked him around a bit. And even if he consistently refuses to tell them the decryption phrase, and they are unable to brute-force it (who knows what kind of hardware they have access to these days?), they still may have taken copies of the encrypted data for "future brute-force attempts", so John will always wonder if his data is compromised or not, even though he didn't even actually have any child porn or anything else that's illegal. Is this really how things are done? I have a feeling that it's exactly how it happens, as long as the reporter is convincing/serious-sounding. | One of the leading U.S. Supreme Court cases on probable cause in circumstances in which there is an anonymous informant is Illinois v. Gates, 462 U.S. 213 (1983). In that case it allowed the use anonymous informants’ tips as part of the factual basis substantiating a probable-cause determination, which is the standard necessary to issue a search warrant. One summary of this case explains: In Gates, an anonymous informant wrote a letter to the police claiming that Lance and Sue Gates were selling drugs, hiding $100,000 of drugs in their basement, bragging about not having to work, and planning a trip to Florida to buy over $100,000 worth of drugs. The letter specified the approximate timing for the trip, as well as some other details of the couple’s regular travel arrangements. The police corroborated some of these details—including the timing of the upcoming trip as well as its initiation in real time, through their own investigation, and ultimately acquired a warrant to search the couple’s car and home, where they found drugs, weapons, and other contraband. The Supreme Court held that the combination in Gates of the anonymous informant’s tip and police corroboration of some of the information that the tip provided were sufficient to make out probable cause to justify the issuance of the search warrant. This was true, moreover, despite the fact that what the police corroborated were primarily innocent sorts of details—in other words, details that did not (in the absence of the criminal accusations) necessarily point to criminal activity. More recently, the U.S. Supreme Court held in the case of Navarette v. California, 572 U.S. 393 (2014), that an anonymous 911 call could, under the circumstances of the case, provide a basis for establishing probable cause. As on summary of the case explains: someone called 911 saying she had been run off the road by a pickup truck. The anonymous caller gave the 911 operator the make, model and license plate number of the pickup truck as well as the location of where she was allegedly ran off the road. Police stopped the driver of the truck, smelled marijuana and discovered 30 pounds of marijuana. Navarette was arrested but argued the police had no probable cause for the initial stop as they had no way of establishing the identity or reliably of the anonymous caller. The majority of the Supreme Court did not agree, holding that police can stop someone if the information obtained from an anonymous informant provides enough detail to create reasonable suspicion of a crime. In Justice Thomas’ majority opinion, he concluded that the caller was an eyewitness who was forced off the road leading police to believe the pickup truck driver was drunk. Thomas also felt it was reasonable to rely on the information given by anonymous 911 callers because the calls are recorded and the service can track and identify callers. A similar analysis would apply in the case in the question. | can really anyone in Germany call the police on others without proof of anything? Anyone anywhere can call the police without proof of anything as long as they have a phone. The question is, what will the police do about it. Police in Germany are more professional and less corrupt than in many countries in the world (e.g. they are much less corrupt than police in much of the United States or police in Southern Italy or Mexico, or in much of the "third-world"). Most German police are unlikely to exercise their power unless they are genuinely deceived into thinking that you committed an actual crime. But, German cops are human too. Some German cops are bad cops and even good cops aren't perfect truth detectors or bias free. and if so what are my rights? There has to be some evidence to arrest you or prosecute you, but testimony from people who claim to be eye witnesses is a form of evidence and proof. People are routinely convicted of crimes (everywhere in the world) based solely upon the testimony of other people with no additional proof. This is usually a good rule. As a society we don't want the criminal justice system to let people who commit crimes that are witnessed by lots of truthful witnesses and testified to, to go free just because there is no non-testimonial evidence. But because people lie (or are simply mistaken about the truth) sometimes, it isn't a perfect way of determining who is guilty and who is innocent. You also have the right to lodge a complaint of criminal defamation with the police in Germany and in Germany hundreds of thousands of such cases are prosecuted by police every year. Making false accusations against you (or even just insulting you in an extremely offense manner) as they did is a minor crime in Germany. and the person I mentioned had 2 of his employees with him but I am sure and I know for a fact they are on his side and I had no witnesses with me so how can I prove I am innocent? if they agreed on making up a story against me? The possibility that people will be wrongfully arrested and wrongfully convicted of crimes because people lie and authorities believe the people who are lying is a constant risk. The best you can do is to tell your story consistently and honestly and hope that you are believed. But it is impossible to eliminate the risk that people will lie and be believed and that you will suffer the consequences, even if you are doing everything right. In the long run, you may want to avoid people who you think would lie and make false accusations around you, and to have the presence of either friendly witnesses and/or audio/visual recording at times when you are in their presence. You may also, as a long run strategy try to figure out if there was anything you could have done to prevent them from being out to get you so badly that they would make false accusations against you. While I don't want to blame the victim, and often enough, especially for example, if you are a foreigner or otherwise different in a homogeneous community some people are doing to hate you for no reason, sometimes their real motivation may be a failure to follow social norms that are not actually illegal, or a misunderstand that could be cleared up. | If the police are able to attain a warrant that for some reason identifies your room and your things in particular, then they can search your room and seize your things. Ideally the police would have to give the judge or magistrate reasonable suspicion that their target has put some evidence in your room, or that some of your things are evidence relating to the purported crime. In practice, warrants err on the side of generality, so the police can easily get a warrant to search "the whole residence" without contemplating the nuance of which tenants use which rooms. Likewise, when determining what to seize, the police can certainly choose to err on the broad side and seize anything that meets the criteria of the warrant without stopping to determine who owns what. "Respect" of any sort is not a legal factor in the execution of an approved warrant. | There are no such laws that are specific to rape, but there are general laws about false statements. In every state there is some law against making a false statement to a government official, e.g. Washington RCW 9A.76.175 which says that one who "knowingly makes a false or misleading material statement to a public servant is guilty of a gross misdemeanor". To shift context slightly, if you report to the police that Smith stole your lawn mower when in fact you gave it to him, that is a false statement. However, there would have to be clear proof that you lied in your report, and not that there was a misunderstanding. If Smith stole the mower but the evidence did not support a theft conviction, that does not mean that you can be prosecuted for making a false statement (whereas, if someone has a video of you telling Smith "Here's a mower, which I give to you because I like you", then you could almost be prosecuted for making a false statement, were it not for the fact that the video is illegal in Washington). Perjury is the other related crime: RCW 9A.72.020 "a materially false statement which he or she knows to be false under an oath required or authorized by law". [Addendum] About the video of the mower being given away... Washington is an all-party consent state, meaning that you can't just record people, you have to have their permission (everybody's permission). RCW 9.73.050 says that information obtained by illegal recording shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except with the permission of the person whose rights have been violated in an action brought for damages under the provisions of RCW 9.73.030 through 9.73.080 which is to say, "unless the person(s) who did not give permission to be recorded now give permission for the evidence to be admitted". Since "you" would be the one making a false statement, "you" would have an interest in suppressing the video, thus "you" could withhold permission for the video to be introduced. | Wooden made two arguments to suppress the evidence, first that he had not consented to the officer entering his house (the officer and the court disagreed) and the second that even if the officer's entry had been legitimate, the evidence wasn't legitimate because of the Fourth Amendment: Much of Wooden’s challenge turns on the fact that Mason was neither in uniform nor identified himself as a police officer. Both are true. But generally speaking, neither amounts to improper deception in the Fourth Amendment context. United States v. Baldwin , 621 F.2d 251, 252–53 (6th Cir. 1980) (citing Lewis v. United States , 385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) ). Nor did Mason take any affirmative steps to attempt to deceive Wooden regarding his identity. Mason was silent as to his official position; he did not hold himself out to be anything he was not. He merely asked to speak to Harris and then asked if he could come inside, to get out of the cold. Probably relevant also is that the officer didn't "search" for the rifle that prompted the arrest. Wooden picked it up in plain sight, the search of Wooden's person that revealed the second firearm was done as the officer arrested him for the rifle and the subsequent search of the house was carried out with the consent of the other resident Janet Harris. | TV shows like COPS will have the arrestees/suspects/bystanders/victims sign a waiver to appear on the show, along with anybody else that they film in the process, otherwise the faces will be blurred, or removed from the show entirely. Additionally you can tell the camera crews that they are not allowed in your home. If they do enter your home without permission, you can sue them for trespassing. It should be noted that those shows are often edited for drama, and as such seem much more dramatic than it is. The film crews may spend weeks or more (400 hours of video) just to get enough "good stuff" for a 22 minute episode, and then make it look like it all happens over the course of an evening. As for the moral/social acceptance of a lack of privacy, that question really isn't on-topic here. This should be the same for any other "COPS-like" TV/youtube show, but there are some shows out there that don't take the rules as seriously as others. Those usually operate under the "who we are filming probably can't afford a lawyer" mentality so they keep going until they get sued. | Miranda rights do not attach until the suspect is subject to custodial interrogation. "Custody" means that the suspect reasonably believes that he is not free to leave the conversation. "Interrogation" means that the officer is engaging in direct questioning or other conduct that would reasonably be expected to elicit a response. A suspect is free to waive his Miranda rights and begin speaking without a lawyer, but a waiver must be knowing, intelligent and voluntary. "Voluntary" means that the waiver is obtained without coercion (torture, threats or promises) by the government. None of the five scenarios indicate that Clyde ever believes he is in custody, so he has no Miranda rights in any of them, making his confession admissible in all of them. But to play it out further, let's assume that Officer Olivia arrives and immediately slaps handcuffs on Clyde: No interrogation, no Miranda rights. The confession is admissible. No interrogation, no Miranda rights. The confession is admissible. Miranda rights attached at the beginning of questioning. Clyde waived by confessing. Reading the Miranda rights established that the waiver was knowing. We don't have any facts suggesting the waiver was not intelligent. The waiver was not obtained by government coercion, so it was voluntary. The waiver was effective, so the confession is admissible. Same as 3. No interrogation, no Miranda rights. The confession is admissible. The key thing to keep in mind here is that the purpose of the Fifth Amendment right against self-incrimination was to avoid misconduct by the government, and it has generally been implemented only to that end. The key case here is Colorado v. Connelly, 479 U.S. 157 (1986), which involved a guy who approached a police officer and asked to talk about a murder he had committed. The officer Mirandized him, and he told them all about the murder and where he buried the body. It turned out that he was a chronic schizophrenic and was going through a psychotic break at the time of the confession, which he had only offered because "God's voice" told him to. As with your truth serum scenario, the question became whether the Miranda waiver satisfied the voluntariness requirement. The Colorado Supreme Court held that "capacity for rational judgment and free choice may be overborne as much by certain forms of severe mental illness as by external pressure." But the U.S. Supreme Court reversed, holding that neither the defendant's due-process rights nor his right against self-incrimination are offended by non-governmental influences, even when they undercut the defendant's free will. Since then, other courts have relied on Connelly to hold that voluntariness was not defeated by: a suspect's flu, hangover, hunger, or exhaustion, U.S. v. Elwood, 51 F.3d 283 (9th Cir. 1995); a suspect's heroin use, Elliott v. Williams, 248 F.3d 1205, 1213 (10th Cir. 2001); a suspect's heroin withdrawal, U.S. v. Kelley, 953 F.2d 562, 565 (9th Cir. 1992); a suspect's orders from his father, N. Mariana Islands v. Doe, 844 F.2d 791 (9th Cir. 1988); or a suspect's unusual susceptibility to suggestion or intimidation, U.S. v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993). tl;dr: Because the truth serum was not administered by the government, the confession is admissible in all five scenarios. | There are various ways in which a minor cannot assist a police investigation, and it might be useful to say in what ways any civilian could do so (TV shows notwithstanding). A civilian cannot conduct a custodial interrogation, nor can most of them gather physical evidence (so that a proper evidence log is maintained including relevant information on method of collection, the evidence isn't contaminated etc. – stuff that requires a modicum of training). They cannot execute a search warrant. On the other hand, anyone can provide information that is useful to the police, and it can be done without giving your name or indicating that you are a minor. A minor can serve as a witness at a trial, and it can be helpful to police to know that they have a witness to a crime. A minor can also be used the same way an adult is used, as a confidential informant. There is not a lot of data on that practice given the confidentiality of juvenile records, but there is an article to read ("Juvenile Police Informants: Friendship, Persuasion, and Pretense". The article does suggest that parental consent may be necessary in some cases (such as wearing a wire to a drug transaction). There is a law in Washington requiring every county's prosecutor to have a local protocol for using informants, and there should be guidelines developed by a work group, however the results (if any) of that group's meetings are not available on the internet. It is possible that there are specific restrictions on the use of minors as informants in some jurisdiction. The article explores the subtle distinction between "informant" and "friend", applied to minors. California has a law that limits the use of minors – none under 15, those above with approval of a judicial officer and parent, though those 13 and older can be used as bait in a cigarette or alcohol sales case. New York does not have a blanket prohibition against using a minor as an informant, but there may be relevant guidelines for a particular department. |
How to get American citizenship back, once it is renounced? American citizens can have dual citizenship, but if an American citizen who has renounced his or her citizenship (even though the person was originally an American citizen), then what is a way of obtaining it again? Can an American citizen without dual citizenship (only an American citizen), renounce his or her citizenship? | American citizens can have dual citizenship , but if an american citizen who has his/her citizenship renounced (even though the person was originally an american citizen) , then what is a way of obtaining the citizenship back? Possibly, by the same means that a non-citizen could be naturalized. But, immigration and nationality officials have broad discretion and would probably refuse to grant citizenship to someone who had previously renounced it. And can an american citizen without dual citizenship (Meaning that he is only an american citizen), renounce his/her citizenship? Yes. For example, Prince Harry's financee plans to renounce her U.S. citizenship and contemporaneously be granted U.K. citizenship (the paperwork goes through really easily when the Queen is your grandmother in law). Renunciation of citizenship is not necessarily tied to gaining a new citizenship, but leaving yourself stateless would be a foolish thing to do. | You didn't bother to state who this appeal is with or even where you are but I'm almost certain I know the answer. Just once. If the appeal is denied, you may be able to appeal to a higher body such as a higher court or an ombudsman. However, any group or court allowing the same appeal ad infinitum until you get what you want would be farcical. | There is a form here which you submit to USCIS – immigrated not before 1906, not for a living person. However, to apply for citizenship, one must have been a permanent resident for 5 years, so given the date on the card (and assuming your father did not marry a US citizen), he could not have been naturalized before departure in 1959. | If the U.S. adds a new territory, are the people currently living there able to become president? No. Or does the territory have to become a state in order for the people to be eligible to become president? Not necessarily. What does "natural-born citizen" mean? The meaning of the natural born citizen clause of the constitution is unclear in many respects, but virtually all scholars agree that a person who was a US citizen at birth, and who has remained a US citizen until present, is a natural-born citizen. There is a small minority of scholars who insist that a US citizen at birth is only a natural-born citizen if they were born in the US (for example, Ted Cruz would not be considered a natural-born citizen). There is an even smaller minority who insist that a person must have at least one US citizen parent in order to be a natural-born citizen. But for all practical purposes, these minority viewpoints are irrelevant. The only thing that matters is whether someone was a US citizen when they were born. Citizenship of people living in US territories When a US territory is created, the people living there don't automatically become US citizens, and if Congress eventually gives them US citizenship, the canon of presumption against retroactivity applies: a statute should not be read to be retroactive unless there is evidence that it was intended to apply retroactively. That means the people who get US citizenship under the statute don't become natural-born citizens; they're considered to have been automatically naturalized when the statute went into effect. But if there's a statute saying that people born in the territory are US citizens at birth, then people born in the territory after the effective date of that statute are natural-born citizens, since they are citizens at birth. I will use Hawaii as an example. Hawaii became a territory in 1898. Citizenship was granted in 1900. Statehood was not granted until 1959. 8 USC §1405 governs the citizenship of people born in Hawaii: A person born in Hawaii on or after August 12, 1898, and before April 30, 1900, is declared to be a citizen of the United States as of April 30, 1900. A person born in Hawaii on or after April 30, 1900, is a citizen of the United States at birth. A person who was a citizen of the Republic of Hawaii on August 12, 1898, is declared to be a citizen of the United States as of April 30, 1900. So, Hawaiians didn't become US citizens when Hawaii was annexed. They were granted US citizenship 2 years later. A person born in Hawaii on or after April 30, 1900 is a natural born citizen. Applying the presumption against retroactivity, we see that a person who was born in Hawaii between August 12, 1898 and April 29, 1900, or who was a citizen of independent Hawaii when it was annexed by the United States, was not a natural born citizen and could not have become President. In addition to the presumption against retroactivity, there is also another canon of construction that applies here: Congress could have used the "is a citizen of the United States at birth" language for the other two categories of Hawaiians too, but chose to omit it. Presumably, Congress acted purposefully in doing so, with the intent of granting citizenship at birth to only one of the three categories. (I can't remember whether this canon has a name.) Can Congress grant natural-born citizen status retroactively? If the US were to acquire a new territory and saw fit to bestow citizenship retroactively to birth on some natives of that territory, would those people be eligible for the presidency? No one knows the answer to that question. As an example of when Congress has granted citizenship retroactively, the Immigration and Nationality Technical Corrections Act of 1994 created 8 USC §1401(h), which granted citizenship retroactively to birth to individuals who had been born outside the US to a US citizen mother and alien father prior to May 24, 1934. This act was necessary because, prior to that date, only US citizen fathers could transmit citizenship, not US citizen mothers. A person granted citizenship under this statute would be over the age of 89 now, so we're unlikely to see one run for president. It's an open question whether someone who obtained US citizenship through this statute would be considered eligible for the presidency. One could argue that "natural-born citizen" implies a person who actually was a citizen when they were born and that retroactive grants of citizenship are a mere legal fiction that cannot override the meaning of the constitution. | 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. | Can I choose to not register my child as a US citizen? No. Your child will be a US citizen regardless of whether you register anything, and (unless you have spent less than 5 years in the US, or less than 2 years after you turned 14) regardless of the place of birth, because (in that case) even if the child is born outside the US he or she will be a US citizen under 8 USC 1401(g). Can I register them with an 18yoa deadline for them to choose citizenship? No. Your child probably (depending on your wife's citizenship, and assuming birth in the US) will be a dual citizen from birth without the need or the ability to choose. On turning 18, the child will be able to renounce either citizenship, but will not be required to renounce US citizenship and will probably not be required to renounce the other citizenship either. (I am not familiar with all EU countries' citizenship laws, so the law of that country might have a requirement to choose, but there is no such requirement in the countries whose laws I am familiar with. If the other country is the Netherlands, the child will risk losing Dutch citizenship on turning 28 unless he or she takes steps to avoid that or unless the law changes.) As pointed out in a comment on Putvi's answer, if you successfully avoid letting the US know about your child's birth, you would be in the awkward position of needing to get a visa for the child if you ever want the child to leave and reenter the country. Otherwise, the child would be an illegal alien in the eyes of the US (this assumes you've managed to hide the child's place of birth). There is no process available to get visas in the US for (non-diplomatic) children born in the US, of course, because such children are citizens of the US. | You ask if your deceased brother's green card may be legally used by another person. The answer is: no. | 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). |
A company had me sign two conflicting documents about two years apart. Which one would apply? The first was a drug policy. No drugs or alcohol period. The second said no drugs or alcohol on the job site. They got me on a drug test but I never smoke at work. Does the first document apply | A company had me sign two conflicting documents about two years apart. Which one would apply? Possibly both because actually there is no conflict. What you describe does not reflect that these documents are incompatible or inconsistent. There is no indication that the second document impliedly or explicitly replaces the first one. The second document seems just redundant so far. Employees could likewise be required to sign a third document that only says "no drugs or alcohol on the job site on Wednesdays", and that does not mean that any previous documents they signed expire. | Most Likely Yes to both. It really depends on the nature of your agreement, oral agreements are as legally binding as written ones, but as a matter of evidence in court written contracts are of course better. So looking at your agreement: did you agree to pay the full amount, in return for a place to study? Or did you specifically agree to pay on a rolling basis, where you pay for however long you actually study? I would believe that you had agreed to the first type of agreement, since that is what most study contracts are. And if that's the case: You pay to be allowed to attend, whether you actually attend or not isn't important. And even if you pay on a rolling basis, I would think in a lawsuit the court would find that - judging on previous payments - you'd have agreed to pay on a per semester basis, meaning that the incomplete semester would round up and you would still have to pay for it. I would lean yes to the 2nd question (but im not sure so anyone with more info please chime in). This answer can be more useful if you be specific about the terms and conditions of your study | It is cl;early not legal to charge for an optional warranty without ever having gotten approval for it. The customer could simply ask for a refund on teh ground that this was an error, and take it to small claims if that was refused. I am sure it is legal to offer such an optional warranty and point out its (alleged) benefits. I do not know if consumer law forbids making this pitch multiple times in the same selling encounter. | As the comment by Ron Beyer mentions when a company wants to impose such restrictions they are normally done through non-compete, non-solicitation, and non-disclosure agreements, as well as via trade secret law. Note the word "agreements". "Restrictions on working in the field" are simply a form of non-compete agreements. A company cannot, legally, simply impose such agreements on its employees. It can require an employee to sign such an agreement as a condition of employment, and it can often require such an agreement from a departing employee as a condition of a severance payment. Exactly what is covered by such an agreement depends on its terms, and those vary widely. In most US states there are limits on the scope and duration of such an agreement. In some states the restrictions can be broad and of fairly long duration, in others they must be narrow and of fairly short duration. An agreement that goes beyond a given state's limits will not be enforceable in court, if the defendant brings that fact up. Trade secret law can prevent an employee from disclosing the trade secrets of a former employer to a new employer, or indeed to anyone else. But that does not prevent a former employee from getting a new job in the field, as long as the employee does not disclose any trade secrets. If an employee has signed, or is asked to sign, such an agreement, it is a good idea to consult a lawyer with employment law experience. If the state is known, I could edit this answer to include the limits, if any, on such agreements in that state. | The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot". | 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. | 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). | 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. |
Does saying that a work of art was inspired by another work mean the former is a derivative work? Say a composer read a poem. The poem is the published work of a living poet and obviously protected by copyright. This composer was inspired by the poem, and down the road he has written a piece of music that is his own artistic response to it. The musical piece composed has no text (it is an instrumental work only), and any connections to the poem that inspired it exist solely in the composer's imagination. At this point, is the composer's work derivative of the poem? And if the composer indicates in program notes, discussion with the performers, an interview, etc. that it was inspired by that specific poem, does that then make it a derivative work? And I'm assuming that were the composer to desire titling his work with the same title as the poem, that would definitely be derivative, and require permission? | No Copyright protects expressions of ideas but not ideas. A song with the words if a poem set to music would generally require the permission of the owner of the copyrighted poem. An instrumental score “inspired by a poem” would not remotely be using the same expression, or a derivative of, the poem. Titles are not subject to copyright and there are many books with identical titles. Try “The Gathering Storm” as a book title. | 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. | Using the setting and characters of an existing and current book would probably, indeed almost surely, make it a derivative work. Creating a derivative work from a work protected by copyright requires permission from the copyright holder, unless an exception to copyright applies. In US law 17 USC 101 defines a derivative work as: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. and 17 USC 106 provides in pertinent part that: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ... to prepare derivative works based upon the copyrighted work; This means that creating such a fanfic without permission would be copyright infringement, and Rowling could sue for damages. Fair use In the US the primary exception to copyright available is fair use. Whether a work is a fair use of another is always a case-by-case decision, and often a complex one. There have not been many published US cases on whether fanfiction is or may be fair use. This depends on the details, but from the description I do not think such a fanfic as the question describes would be likely to be held to be a case of fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? In general fanfiction has not fared very well under US copyright law. See this Wikipedia article. A recent Law Review article on this topic, one of the few available, is The Better Angels of Our Fanfiction: The Need for True and Logical Precedent, 33 Hastings Comm. & Ent. L.J. 159](https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol33/iss2/1) by Stacey M. Lantagne. [Footnotes in the original shown here in {braces}.] On pages 168-9 Lantagne wrote: Although fanfiction is a flourishing medium, there has been no true case evaluating it under a fair use analysis. For instance, Warner Bros. Entertainment Inc. v. RDR Books 575 F.Supp.2d 513 (SDNY 2008) involved a work created by a fan, but the work in question was an encyclopedic reference book about the original copyrighted material, not a piece of fiction spun off from the original copyrighted work in some way. The fan work's inconsistently transformative character swayed the court's fair use analysis{The court noted that at times the fan work lapsed into mere verbatim copying of the original copyrighted material, which detracted from its transformative nature}, and the fact that it used more of the original copyrighted work than was necessary.{The court found it telling that the fan work contained a great deal of verbatim copying of "highly aesthetic expression," which tipped this factor away from a finding of fair use} These two factors would necessarily dictate a different analysis when a work of fiction is involved as opposed to a reference work.{Warner Bros., 575 F. Supp. 2d at 544. The court found troubling the excessive copying of "distinctive original language from the Harry Potter works," using "Rowling's original expression," in the work's entries. Id. Presumably, much less direct copying of original language would happen in a work of fiction. A similar implication occurs when considering the "verbatim copying" of whole sentences from the Harry Potter books. Id. at 547. Works of fanfiction seldom copy verbatim language, focusing on characters, settings, and plots.} Lantagne next discussed mthe case of Salinger v. Colting, 607 F.3d 68, 70. That case dealt with a novel called 60 Years Later: Coming Through the Rye, whose protagonist, "Mr. C", is a 76-year-old Holden Caulfield, (the protagonist of the J.D. Salinger novel The Catcher in the Rye. Lantagne wrote: The defendant's novel embodies typical fanfiction activity: taking a recognizable character and re-imagining them at a different stage of life." The court determined that the work was not permissible fair use and enjoined its publication.{This case [on appeal] recently settled, with Colting agreeing not to publish the book in the United States or Canada until the copyright on The Catcher in the Rye expires, but being able to publish it in other international territories, as long as it was not marketed using reference to Salinger, The Catcher in the Rye, or the litigation between the parties.} First, the court concluded that 60 Years Later was not a parody because it "contain[ed] no reasonably discernible rejoinder or specific criticism of any character or theme of Catcher. Rather than commenting on Holden Caulfield as a character, the purpose of 60 Years Later was to "satisfy Holden's fans' passion" for his character. The insertion of J.D. Salinger as a character in 60 Years Later was possibly, the court conceded, a criticism and commentary of Salinger, but not of The Catcher in the Rye. While the court admitted that there was some transformative element in the Salinger character in 60 Years Later, it was limited by the character's minor role in a work that was largely not transformative. The court concluded that merely aging the main character of a novel and altering the novel's setting was not sufficient to make the use transformative. Finally, because 60 Years Later was to be sold for profit, the court found that the first factor weighed against a finding of fair use. After finding The Catcher in the Rye to be an expressive work, which weighed the second factor against a finding of fair use, the court then concluded that 60 Years Later took much more from The Catcher in the Rye than was necessary for whatever transformative commentary it was trying to make. The court disapproved mainly of the use of the main character of The Catcher in the Rye. 60 Years Later also was similar to The Catcher in the Rye in structure, in a way that was not necessary to offer a commentary on Salinger (the only transformative purpose the court had found the work to have). Finally, the court found that 60 Years Later harmed the potential market for any permissible The Catcher in the Rye sequels. The court found that fair use should not protect the ability to publish unauthorized sequels: [B]ecause some artists may be further incentivized to create original works due to the availability of the right not to produce any sequels. This might be the case if, for instance, an author's artistic vision includes leaving certain portions or aspects of his character's story to the varied imaginations of his readers, or if he hopes that his readers will engage in discussion and speculation as to what happened subsequently." Although 60 Years Later may be classified as fanfiction, the overtly commercial purpose of the work makes it an imperfect representation of the genre because most fanfiction is not-for-profit.{See Tushnet, supra note 16, at 664. A recent development in fanfiction that has led to clashes is the rise of the use of fanfiction for charitable purposes. "Fanfic auctions" in which readers bid for the services of fanfiction authors to write a story based on their specifications, with the proceeds to benefit charity, are becoming more common. See Gabaldon, supra note 7 ("Recently, a couple of people have drawn my attention to a person who's been posting on various boards about fund-raising for an uninsured friend named Stacie who has breast cancer. Her (the poster's) idea for fund-raising is to auction off a customer-written piece of fan-fic. . . ."). Fanfiction written for such a commercial purpose may change the analysis. But see Tushnet, supra note 16, at 672-73 (quoting Gene Rodenberry).} Because the court weighed the novel's commercial nature against a finding of fair use, Salinger is not an ideal fanfiction precedent Lantagne goes on to discuss the case of Suntrust Bank v. Houghton Mifflin Co 268 F.3d 1257, 1259 (11th Cir. 2001). In that case a novel The Wind Done Gone, retelling Gone With the Wind from the PoV of the black characters, was held to be a parody as well as a sequel, to be "highly transformative", and allowable as fair use. Sequels as Derivative Works A sequel uses the characters and/or setting of an existing work of fiction. It often constitutes a derivative work. The more distinctive and original the setting and characters are, and the more of those distinctive characteristics that are used in the sequel, the more likely the sequel is to be treated as a derivative work. On the matter of sequels, see the case of Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D. Cal. 1989). In that case, a Mr. Timothy Anderson prepared a sequel to the film Rocky III which he hoped would become Rocky IV. He presented it to MGM and Stallone. They eventually declined to buy it, and Anderson sued, claiming that the film Rocky IV that was made infringed his script. The district court held that Anderson's script was an infringing work not entitled to copyright protection. The court, citing Nichols v. Universal Pictures Corp.. 45 F.2d 119 (2d Cir. 1930), ruled that the characters in a copyrighted work are protected when they are "developed with enough specificity to constitute protect able expression." Holding that the Rocky III characters met this standard, the court ruled that the Anderson script was a derivative work created without permission, and thus was not entailed to any copyright protection at all. Anderson appealed, and the case was settled out of court while this appeal was in progress. Details of the settlement were not disclosed. An unauthorized sequel to Harry Potter would probably face the same rule and reach the same result as in the Anderson case.It would depend on how much of the "distinctive" nature of JKR's characters and settings were used in the fanfic sequel. The Ethical and Emotional Arguments against Fan Fiction In This comment on the question user "RedSonja" writes: I know this is Law and you are looking for legal answers. But what you are proposing is plagiarism by the back door. JKR went to a lot of trouble inventing her universe. Why should you be able to just plug in and milk someone else's cow? If you are that highly original, write your own universe. Leaving aside the point that if the source is acknowledged it cannot be plagiarism, although it may be copyright infringement, this is essentially an ethical argument that the law should be different than it currently is. Some authors make an essentially emotional argument, saying that their works or their characters are in effect "children of the mind" and that others should not touch them without permission, whatever the law may say. Some find such arguments persuasive or powerful.. I disagree with these arguments. Lantagne on pages 172-179 of the law review article linked above, responds to such arguments, writing [Some footnotes omitted, others in {braces}]: Fanfiction is frequently devalued as not being "real" writing. This is closely related to the aesthetic argument. Copyright only protects creative expression.{See Eldred v. Ashcroft, 537 U.S. 186, 219 (2002)} If the fanfiction is not creative expression, then it is not copyrightable. That, however, is a different question from whether it is infringing.{See Tushnet, supra note 16, at 681 ("Fan fiction may not be copyrightable, but that does not make it an infringing use....").} It could be that the "not real writing" argument, translated into legalese, really expresses the idea that the work of fanfiction is not transformative enough.{See Campbell v. Acuff-Rose Music, 510 U.S. 569, 580 (1994) ("If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger."). Importantly, however, a work does not have to be transformative to be protected under fair use. See id. at 579. The fair use test is not forgiving of shortcuts.} However, this alone does not automatically make the work a copyright infringement because other fair use factors remain. Many authors frequently describe fanfiction as being the equivalent of an affront against their relatives.{See Gabaldon, supra note 7 ("[L]et us just say that there's a difference between someone dating red-haired men, and the same someone trying to seduce my husband.... I wouldn't like people writing sex fantasies for public consumption about me or members of my family-why would I be all right with them doing it to the intimate creations of my imagination and personality?"); Someone Is Angry on the Internet, supra note 11 ("My characters are my children, I have been heard to say. I don't want people making off with them, thank you."); Hobb, supra note 7 (comparing fanfiction to PhotoShopping a family photo).} While the artistic protectiveness for one's creation is understandable, it is not a valid argument in U.S. copyright law. Artists have the right to control derivative works of their creations. If the fair use factors come out the wrong way [for the reuser], artists can prevent that use of their work. However, the purpose of copyright is not to prevent all use by others of an artistic work.{See, e.g., Campbell, 510 U.S. at 574-77 ("From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose ...)} It never has been. The very character of the fair use test illustrates this, as it protects most strongly those uses of an artist's creation that the artist would never permit.{See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1282-83 (11th Cir.2001) (Marcus, J., concurring) ("To the extent the Suntrust [sought to impose editorial restrictions] to preserve Gone With the Wind's reputation, or protect its story from 'taint,' however, it may not now invoke copyright to further that goal. Of course, Suntrust can choose to license its derivative however it wishes and insist that those derivatives remain free of content it deems disreputable. Suntrust may be vigilant of Gone With the Wind's public image-but it may not use copyright to shield Gone With the Wind from unwelcome comment, a policy that would extend intellectual property protection 'into the precincts of censorship,' in Pat Conroy's words.")} Arguably, the more that a fanfiction work criticizes or parodies the original work, the more that fanfiction is a fair use. Thus, the argument that fanfiction should not be permitted because it transforms the original authors' characters mirrors the argument for exactly why fanfiction should be permitted under copyright law. ... The arguments that authors advance when they argue against copyright belong in a regime without fair use-a regime that would ignore the central purpose of U.S. copyright."' Such a conclusion is not only potentially untenable under the Constitution, but is also undesirable."' "The public's interest in free expression . . . is significant."" There is no question that courts have, throughout the history of copyright law, sought to protect that public interest. However, there is also no question that courts are inevitably swayed by value arguments. This should not be the case, but such influence is inevitable. ' Furthermore, value is a chicken-and-egg argument: Campbell did not base its decision on the popularity of music sampling, but surely the popularity informed Campbell's understanding of the critical commentary value of "Pretty Woman." ... [T]he use of the word "fair" in "fair use" does not mean that it is fair to the author's wishes. Rather, it means that it is fair to the purposes of copyright. None of the emotional arguments frequently raised against fanfiction support a blanket proclamation that none of it is fair use. Truthfully, much of fanfiction may very well not be fair use. However, a true test case of fanfiction, logically evaluating each factor, would be invaluable in moving the fanfiction debate past the emotions of the participants. The argument should focus not on the emotions of the author or the quality of the writing, but on the fair use factors: on the purpose, character, and possible transformative nature of the work, on the amount of the original copyrighted work used, on the nature of the original copyrighted work, and on the effect on the market of the original copyrighted work. These are the factors that best protect the advancement of the twin goals of U.S. copyright. I agree with Lantagne here, it is often exactly those uses that a copyright owner will not want to approve that should be permitted as an exception to copyright. The limited statutory monopoly is granted in return for a contribution to the clutural fabric, and such work should therefore be available for use in further developing that fabric where it does not deprive the copyright holder of financial rewards, and where such uses in general are of public benefit. I take it thatr current US copyright law follows that goal, more or less. Non-US Law The rule on derivative works is also contained in the Berne Copyright Convention and the WTO's TRIPPS Agreement, and so applies in almost every country. Exceptions to copyright, however, vary widely. The concept of Fair Use is originally a purely US concept, although it has been adopted by Israel, and in part by a few other countries. Other countries generally have more specific and narrower exceptions, but often have several different exceptions. India has some 28 different exceptions in its copyright law. Few of these seem likely to be any more favorable to a fanfiction sequel than the US concept of fair use. | Depending on where exactly you are in the world, there is some protection for the representation of copyright-expired material if work went into presentation. So you might be allowed to put a Bach cantata into musical notation yourself, since he died in 1750, but you cannot simply copy another publisher's sheet music to save that work. The same might apply to an old newspaper article. If you find a print and scan it, you can upload it, but you may not be able to take it from the database organized by someone else. In austria, there is §40f Urheberrecht, which defines databases (they may or may not be collected editions). §40h clarifies how the right to a private copy in §42 extends only to "private use and neither directly nor indirectly commercial purposes." In germany, there is 87a-e UrhG, which covers databases whose assembly did not represent creative work (e.g. by simply ordering things by date). They are protected if the assembly required significant investment. This "lesser protection" lasts only 15 years, not 70, and there is a "a significant part" test for copying less than the whole database. | I don't see how. Remember that a license is a contract where the author gives permission to copy (modify, redistribute, remix, etc) a copyrighted work, provided that the licensee fulfills the stated conditions. If the license is not in effect, then we revert to the default situation under copyright law, which is that the potential licensee has no rights to copy the work. (Not counting particular instances of copying which are permitted under fair use and similar exceptions - I presume that's not what you have in mind, or the whole question is moot.) In this case, the conditions include that the licensee must credit the author under their chosen pseudonym. The licensee can't get out of that obligation simply because they find it distasteful or objectionable for whatever reason. If they don't want to do it, then they should not accept the license in the first place, and so refrain from copying the work. (Of course, if the author is offering the CC license in hopes of encouraging reuse of the work, then this may not be a desirable outcome for the author, so they might want to think twice about their choice of pseudonym.) Even if the author's pseudonym were something that would actually be illegal to quote (say, because it is obscene), I don't think it lets the licensee off the hook. A contract with illegal terms is void, so legally it is as if there is no license at all, and we revert to the default in which there is no right to copy. A question was raised in comments about the word "reasonable". I don't know of case law where this has been tested, so I can only speculate: The context suggests that "reasonable" is intended to refer to the means of attribution (for instance, where the attribution should appear in a piece of source code or documentation), not to the pseudonym. There's a legal principle that the specific governs over the general, and the requirement to credit the author by a particular pseudonym is clearly more specific than the general requirement of "reasonableness". It seems clear that the author, who is the one offering these terms, didn't intend for the general term "reasonable" to render meaningless their request for the use of a specific pseudonym; if they had, why would they have bothered to put it in? On the flip side, there's the principle of contra proferentem, that ambiguities in a contract should be resolved in the favor of the party that didn't draft it - here, the licensee. But it's hard to argue that this is really ambiguous; it seems quite clear what the author wants. Of course, the author can circumvent the whole issue, if they're worried, by licensing the work instead under a modified version of the CC license in which the word "reasonable" is removed. After all, there is nothing particular magical about CC's language: the contract is whatever the author and the licensee agree to, and they're just using the pre-written CC license as a convenience to streamline their negotiations. | Copyright expires 70 years after the original writer breaths his/her last breath, after that it becomes public domain. And all works published before 1923 are in the public domain in the US. This means that the inheritors of the rights cannot sue you for infringement because there is nothing to infringe. If the music is not in public domain you will need to contact the rights holders and negotiate the rights to use the music. This can also be a company that has the right to sublicense the content to others. This is often the way radios and DJs get the right for the music they play. | Not very novel What you are talking about is a derivative work. This is arguably the most famous example: It's an interesting example because Leonardo da Vinci did not have copyright in the original but Marcel Duchamp and Francis Picabia do have copyright in the derivative. Even though the changes are physically small, they are enough. A crucial factor in current legal analysis of derivative works is transformativeness, largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc. The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the parody of "Oh, Pretty Woman" involved in the Campbell case. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is. For an author to have copyright in the derivative they must: Meet the (low) threshold of originality for copyright to exist. Make their derivative lawfully - either because they have permission or because their use falls under an exception to copyright like fair use or fair dealing. However, they do not have copyright in the original elements. For example, I could take the Mona Lisa and give her different clothes, a different background or a hat I will not be infringing their copyright. If I give her a different style of moustache? However, there is an issue with "I have copyright on the contents of the post" when you don't. Even if your work is derivative, you do not have copyright in the original parts and do not have the right to licence them. So, for example, this post is a derivative work of the Wikipedia page linked to above and I have copyright in my original contributions because: They meet the threshold of originality I have permission to make the derivative either through the Wikipedia licence or because my use is fair use. I can give Stack Exchange a licence for my work but I cannot give them a licence for the original work including, for example, the image and quote above. So, someone could quote my entire answer subject to the licence or fair work, but they couldn't copy just the image or quote. | There is a good chance that the letter in question is in the public domain. Prior to 1978, the copyright laws were very different. Also, if it was published in 1963 or earlier and there was an initial claim of copyright but the copyright was not renewed, it would also be in the public domain. A convenient table summarizing when various pertinent categories of works enter the public domain can be found here. It might be possible to construe depositing the work with the Library of Congress as either a "publication" of the work (which if it happened before 1964 would put it in the public domain), or as a relinquishment of the copyright to the public domain, although I am not a specialist familiar with the legal effect of different forms of donations to the Library of Congress and it could depend upon the facts and circumstances of that particular donation to the Library of Congress. If worse came to worse, I imagine it might be possible to seek a declaratory judgment that your use was a fair use with substituted service on the heirs, and seek a default judgment, although that would not be optimal. The general problem that you face is that the work in question is what is called an "orphan work". Many other countries have special procedures to allow the use of orphan works, but the U.S. has resisted such legislation except for a narrow exception applicable only to libraries and archives at 17 U.S.C. § 108. |
What right of self defence do you have against a police dog? It is in the news that an Uber driver was mauled by a police dog despite not initiating violence or attempting to avoid arrest. He has suffered life changing injuries. It seems the self defense recommendation in this situation is to go for the dog's eyes, which would obviously cause life changing injuries to the dog. If one found oneself in such a situation, what is legal self defense? Does it matter if the attack is unprovoked such as in this case, rather than if you initiate violence, or if you try to escape a legal arrest? Any jurisdiction would be interesting, I care most about the UK but as this incident and most readers are in the US this would also be a good jurisdiction to answer for. | england-and-wales The law on this point in England and Wales has recently changed. The main statute here is section 4 of the Animal Welfare Act 2006, amended in 2019 to add an exception relevant to police dogs. Under subsection (1), you commit an offence if you cause a dog (as an example of a "protected animal") to suffer unnecessarily. The necessity conditions in subsection (3) include the example of protecting yourself or someone else, in (3)(c)(ii), but this list is not exhaustive. Nonetheless, that specific defence is excluded by the new subsection (3A) in the case when the dog is a police dog being used by an officer "in a way that was reasonable in all the circumstances". This exception was added precisely to cover the example of a police dog being used to apprehend a suspect, to stop people from claiming self-defence; it's known as "Finn's Law" after a police dog who was stabbed in those circumstances. If this came up in practice, for the scenario you suggest, then the court would have to deal with (among other things): Was the officer's conduct reasonable in all the circumstances? Could the person have avoided harming the animal? Was the level of harm to the animal proportionate? The answers would depend on the exact facts involved, so it's not possible to say in a vacuum whether the elements of the offence could be proved. Note that the Dangerous Dogs Act 1991, which might otherwise apply to the officer in charge of the dog for letting it be "dangerously out of control", actually does not by virtue of section 10(3) so long as it is being used "for a lawful purpose". Meanwhile, as a civil matter, there is a strict liability provision in the Animals Act 1971 which might catch police dogs. That Act distinguishes between animals of a dangerous species, where the liability always applies, and others where it only applies if the animal meets certain conditions. These have attracted some criticism by senior judges over unclarity in their drafting - see for example Ford v Seymour-Williams [2021] EWCA Civ 1848 and Mirvahedy v Henley [2003] UKHL 16 - but on the basis of those decisions, one could argue that the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species in the case of a police dog specifically trained to attack on command. However, on the other side, whether the claim is under the Animals Act, or for battery, etc.: The police may argue that the damage was due to the suspect's own fault. An example I found cited in Street on Torts is Dhesi v Chief Constable of West Midlands Police [2000] WL 491455. A claimant bitten by a police dog was held to have accepted the risk of sustaining damage when he refused to come out of his hiding place, after being warned a dog would be sent in to flush him out; this engaged section 5(1) of the Animals Act and defeated strict liability. The police can argue that their use of force was reasonable for the purpose of preventing crime and/or arresting a suspect. (The same argument by which human officers can use force.) The police can argue that the dog was no more dangerous than an ordinary dog, that the officer did not know it could cause such severe damage, etc., thus removing it from the category of animals where strict liability applies. The police have some protection from civil suit, known as "Hill immunity" after the case Hill v Chief Constable of West Yorkshire Police [1988] UKHL 12, which is not absolute but is very likely to defeat claims where officers were not unusually negligent, not acting outside the bounds of their duties, exercised reasonable care and skill, or did the best they could in a fast and confusing situation. See the recent judgements in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, a case where officers arresting a suspect accidentally hurt an elderly lady, for a very thorough discussion of duty to bystanders and police negligence in general. So again, it all depends on the fact pattern in the specific case, but you may or may not be able to win a civil claim against the police based on the harm done to you by a police dog, even when you didn't hurt the dog. | There was a case like that in 2010 in germany tl;dr synopsis of the German article: The police raided the private home of an alleged member of a criminal gang. This was performed as a no-knock raid. The police officers did not announce themselves as such when they started to break open the door. The suspect had reason to believe that a rival gang was planning an attempt on his life. So the suspect believed that the people trying to break into his home were actually members of said gang trying to murder him. The suspect used a firearm to shoot at the intruders through the door, lethally injuring a police officer. When the police officers then identified themselves as such, the suspect surrendered immediately. A court later ruled that killing the police officer was self-defense, because they were reasonably convinced that the defendant was unaware that he was dealing with police officers, believed to be in a situation where his life was in danger and where lethal violence was the only way to save his life. Here is the verdict. [In German, of course] | The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted. | The law on such matters within the US varies from state to state. In general a dog owner is responsible for taking "reasonable" measures to control the dog and prevent harm. What measures are reasonable will depend on the detailed facts. particularly important will be the previous history and actions of the dog. If a dog has a history of attacking people, then the owner is expected to know this, and to take measures which are reasonable in light of that history. The page "Strict Liability Dog-Bite Laws" from Nolo documents states in which an owner may be responsible for any bite. As that page says: When a dog hurts someone, the injured person is likely to sue the animal's owner for medical costs and other damages. In more than half of the states, those lawsuits may be based on laws that make the owner automatically liable for most dog-bite injuries. These laws are often called "strict liability" statutes, because the injured person doesn't have to prove that the animal's owner knew the dog was dangerous (often called the "one-bite rule") or that the dog owner was negligent (legalese for "careless"). That page goes on to say: Also, dog owners may have legal defenses to avoid liability for dog bites. Most dog-bite laws include exceptions—typically when the injured person was trespassing or provoked the dog. And many of the laws don't apply if the dog was performing its duties as a police dog when the bite happened. The page lists details on the laws for holding dog owners liable in the listed states under a "strict liability" theory. The page notes that even when one of the listed exceptions applies, so a strict-liability suit cannot be brought, a suit under a negligence theory (failure to take reasonable precautions) may still be possible. A plaintiff may cite both theories in a single suit where the law permits. The page lists 36 states and the District of Columbia as having some sort of strict liability statute for dog attacks as of December 2020. In a number of states that the person attacked was trespassing is considered an exception to the strict-liability rule. The page "Brief Summary of Dog Bite Laws" published by Michigan State University in 2004 says: Liability can be based on a common law theory of negligence of the owner where recovery is based on the action or lack of action by an animal owner /keeper. Common law is the law derived from court decisions and historical traditions rather than explicit statutory provisions. Recovery at law under this concept requires a showing by the injured party that there was a legal duty owed to the injured party by the animal owner /keeper and that the injury arose because of a breach of that duty. This duty can arise from a failing to properly secure an animal or entrusting the animal with someone unfit to restrain the animal. It can also arise independently from violating a local ordinance, such as those ordinances that prohibit dogs running at large or mandatory muzzling provisions. It has been said that one who keeps a vicious dog, with knowledge of its savage and vicious nature, is presumed to be negligent if he or she does not keep the animal secure from injuring others. ... States may also impose a more stringent standard of fault called strict liability . In those states, liability automatically arises when a domestic animal has a known vicious propensity attacks, bites, injures, or even chases someone. There is no necessity to show that the owner was negligent in his or her actions in proving liability. ( Click here for a summary of states that impose strict liability). In addition, owners may face liability based on the legal category of the dog him or herself. Nearly all states have some laws that govern what can be termed “dangerous dog” or “vicious dog” laws. These laws outline what constitutes a “dangerous dog” or even a “potentially dangerous dog” and under what circumstances an owner will be liable for the actions of such dogs. Moreover, some states impose what is called “strict liability” on dog owners for any injury resulting from a dog deemed dangerous regardless of any knowledge of the dog’s tendencies. These strict liability laws may also limit the ability of the owner to claim a defense to the action. In other words, the law may state that the owner is liable regardless of whether the person who was bitten was trespassing on the owner’s property or whether the owner knew the dog was vicious. Regardless of whether you are dealing with a strict liability state or not, provocation will be an important factual issue. Provocation simply refers to a situation where a dog is incited, encouraged, or provoked into biting a person. In states where there is strict liability, an owner may use provocation as a defense to the dog bite. This will either reduce the owner's liability based in part (comparative or contributory negligence on the part of the victim) or bar the victim's claim completely. A court will either determine provocation from the perspective of the injured party (i.e., did the person intend to provoke the animal or have knowledge that his or her actions would provoke the animal) or from the perspective of the dog. The page "State Dog Bite Laws: "One-Bite" vs. Strict Liability" from AllLaw says: Prior to the twentieth century, a dog owner was usually only held liable for injuries when their dog bit someone if the owner had reason to know the dog might bite. This was known as the "one bite" rule because it generally meant that a dog was allowed "one free bite" before the owner would face legal trouble. In modern times, the one bite rule does not necessarily allow a dog one free bite. If an owner knows the particular breed is dangerous, or if the particular dog might be prone to biting because of its general character or some other factor, he or she could face liability for the dog's first bite. The focus is on whether the owner knew or should have known that the dog might bite, and whether the owner took reasonable precautions based on that knowledge. For example, if a relatively aggressive dog recently underwent surgery and the owner did not warn a house guest not to pet the dog, the owner might be held liable if the house guest is subsequently bitten. As a fault concept, the "one bite" rule has much in common with (and often overlaps) the personal injury liability rule of negligence. Many states have enacted "dog bite" statutes that create a form of "strict liability" for dog bites. Strict liability means that the defendant is held liable if a certain event occurs, regardless of whether the defendant could have done anything to prevent the event. The typical strict liability dog bite statute says that a dog owner is liable if his or her dog bites someone, regardless of whether the owner did anything wrong, as long as the injured person: was not trespassing or otherwise breaking the law at the time of the incident, and did not provoke the dog. If a strict liability dog bite statute applies, what the owner did or did not know about the dog prior to the bite is usually irrelevant. Note that strict liability dog bite statutes are not the same in every state that has one of these laws on the books. ... In short, the particular law of the state or locality, and the particular facts of the case will both be important in the case of any dog attack. By the way, nothing an animal does on its own can be classed as self-defense, although where a human orders an animal to attack that might be self-defense by the human (using the animal), depending on the facts. Actions that would have been self-defense by a human will probably not be grounds for finding an animal's owner liable. | Although the assailant (or their estate if they are killed) could lodge a claim for damages it does not necessarily follow that they would win - they would have to show that the shooting was not legitimate self-defence but rather was unlawful by, for example, negligence or use of excessive force - say by shooting them when they didn't pose an immediate and unjustified threat. The Federation rules, as far as I can see, are not actual legislation. Although they should be adhered to in normal circumstances, this shooting would be, in the given circumstances, legitimate self-defence according to Article 122-5 of the Code Pénal which says: N'est pas pénalement responsable la personne qui, devant une atteinte injustifiée envers elle-même ou autrui, accomplit, dans le même temps, un acte commandé par la nécessité de la légitime défense d'elle-même ou d'autrui, sauf s'il y a disproportion entre les moyens de défense employés et la gravité de l'atteinte. N'est pas pénalement responsable la personne qui, pour interrompre l'exécution d'un crime ou d'un délit contre un bien, accomplit un acte de défense, autre qu'un homicide volontaire, lorsque cet acte est strictement nécessaire au but poursuivi dès lors que les moyens employés sont proportionnés à la gravité de l'infraction. Which Google translates to English as: The person who, in the face of an unjustified attack on himself or others, performs, at the same time, an act ordered by the necessity of the self-defense of himself or of others, is not criminally liable, except 'there is a disproportion between the means of defense employed and the seriousness of the infringement. The person who, in order to interrupt the execution of a crime or an offense against property, performs an act of defense, other than intentional homicide, when this act is strictly necessary for the aim pursued, is not criminally liable. provided that the means employed are proportionate to the gravity of the offense. | You face two legal perils when you use a firearm against a wild animal: Most wild animals are protected or regulated as game by state and/or federal law. Unnecessarily discharging a firearm is forbidden in many jurisdictions. With respect to both charges, self defense is almost always a justification (assuming the possession of the weapon used was lawful). The specifics vary a little by jurisdiction, but this Utah rule is pretty typical: R657-63-3. Self Defense. (1) A person is legally justified in killing or seriously injuring a threatening wild animal when the person reasonably believes such action is necessary to protect them self, another person, or a domestic animal against an imminent attack by the wild animal that will likely result in severe bodily injury or death to the victim. (2) In determining imminence or reasonableness under Subsection (1), the trier of fact may consider, but is not limited to, any of the following factors: (a) the nature of the danger; (b) the immediacy of the danger; (c) the probability that the threatening wild animal will attack; (d) the probability that the attack will result in death or serious bodily injury; (e) the ability to safely retreat; (f) the fault of the person in creating the encounter; and (g) any previous pattern of aggressive or threatening behavior by the individual wild animal which was known to the person claiming self defense. (3)(a) A person shall notify the division within 12 hours after killing or wounding a wild animal under Subsection (1). (b) No wild animal killed pursuant to Subsection (1) or the parts thereof may be removed from the site, repositioned, retained, sold, or transferred without written authorization from the division. (4)(a) A person is not legally justified in killing or seriously injuring a threatening wild animal under the circumstances specified in Subsection (1) if the person: (i) has the ability to safely retreat from the threatening animal and fails to do so, except when the animal enters a home, tent, camper, or other permanent or temporary living structure occupied at the time by the person or another person; or (ii) intentionally, knowingly, or recklessly provokes or attracts the wild animal into a situation in which it is probable it will threaten the person, another person, or a domestic animal. Federal law is a little more terse: The Endangered Species Act includes the following: Notwithstanding any other provision of this Act, no civil penalty shall be imposed if it can be shown by a preponderance of the evidence that the defendant committed an act based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual from bodily harm, from any endangered or threatened species. Defense of property One can be fined for killing threatened or endangered animals in defense of property or livestock (see, for example, Christy v. Hodel). These instructions from the Missouri Department of Conservation are typical: If wildlife is damaging your property, you ... may shoot or trap most damage-causing wildlife out of season and without a permit to prevent further damage. Note: Wildlife you may not shoot or trap under this provision are migratory birds, white-tailed deer, mule deer, elk, turkeys, black bears, mountain lions, and any endangered species. For conflicts with these species, contact your local county conservation agent or nearest Department office. Control action may be taken only on your property. Wildlife you take under this provision may not be used in any way, and you must report it to the Department within 24 hours, then dispose of it in accordance with Department instructions. Check with local city or county authorities regarding the use of traps and firearms in local jurisdictions. | 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. | canada The defences of "self-defence" and "defence of another" are available defences to any act that would otherwise constitute "an offence" in Canada. Section 34 simply says: "A person is not guilty of an offence if... [and then goes on to list the elements of the defence]." Your question seems to ask about the scope of actions that might be justified or excused by the defence. If it wasn't clear before 2012, amendments in 2012 to the self-defence laws in Canada made it absolutely clear that any offence may be justified or excused by self-defence or defence of another. As the Supreme Court describes in R. v. Khill, 2021 SCC 37: The accused’s response under the new law is also no longer limited to a defensive use of force. It can apply to other classes of offences, including acts that tread upon the rights of innocent third parties, such as theft, breaking and entering or dangerous driving. The substantive elements of self-defence and defence of another are described two other Q&As, so I will only state them briefly: (a) reasonable belief of a threat of force; (b) the act constituting the offence is for the purpose of protection; (c) the act committed is reasonable. For details see: Is it legal to use force against a person who is trying to stop you from rescuing another person? Is self-defense allowed when there are objectively reasonable grounds but it is actually done subjectively for improper reasons? |
Can I sue a government agency for removing Facebook comments? According to lawyers.com: “Even if a social media site is maintained as an official government tool, it may not be a public forum for purposes of free speech. For instance, government agencies don’t have to let citizens voice their opinions on official websites that are meant only to pass on information. But the picture changes once public agencies or officials set up sites or accounts that allow people to post comments and voice their opinions freely. Although there may be reasonable restrictions on things like vulgarity or spam, the officials may not delete comments or block users just because they don’t like the opinions being expressed—what’s known as “viewpoint discrimination.”‘ There is a certain Facebook page that is ran by a bureaucracy of the federal government, and I have several screenshots proving they remove, or hide, hundreds of comments on every post. Can I sue this government agency for removing Facebook comments? | 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. | You would think so, but no While at first glance, President Trump sending a staff member to testify under oath in his place (to nullify any personal risk of perjury?) appears to epitomize the concept of "hearsay"-- a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement --there are some subtle but important distinctions and exceptions in play. I'm going to list them off in increasing order of relevance. FOIA penalties are civil, not criminal The official DOJ website lists off the penalties for Freedom of Information Act violations: The court may award reasonable attorney fees and other litigation costs against the government when the complainant substantially prevails. See 5 U.S.C. Sec. 552(a)(4)(E). Action Against Individual Employees: Sanctions may be taken against individual agency employees who are found to have acted arbitrarily or capriciously in improperly withholding records. Additionally, the court must award attorney fees and other litigation costs against the government. When the statutory requirements are found by the Court to have been met, the Merit Systems Protection Board (MSPB) must promptly initiate a proceeding to determine whether disciplinary action is warranted against the office or employee who is primarily responsible for the withholding. The MSPB, after investigating and considering the evidence, submits its findings and recommendations to the agency concerned which then is required to take the corrective action recommended by the Board. See 5 U.S.C. Sec. 552(a)(4)(F). Additionally, there now exists independent jurisdiction for such MSPB investigations under 5 U.S.C. Sec. 1206(e)(1) (1982). Failure to comply with a court order to produce the records in question may also result in punishment for contempt for the responsible employee. See 5 U.S.C. Sec. 552(a)(4)(G). So the strongest penalty against any individual government official who violated FOIA would be losing their job, or civil contempt of court. In principle the prohibition against hearsay applies equally to civil cases as criminal ones; in practice, because the stakes are lower, courts may take a somewhat looser attitude towards hearsay in civil cases than they would in a similar criminal case. Rule 807(a), "Residual Exceptions" Rule 807(a) gives courts large latitude to determine whether or not to admit hearsay evidence: (a) In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: (1) the statement is supported by sufficient guarantees of trustworthiness–after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and (2) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. In this situation, the presiding judge, Reggie Walton of the D.C. District Court, clarified what he would consider "sufficient guarantees of trustworthiness": U.S. District Court Judge Reggie Walton issued the rare order to the White House last week after expressing dissatisfaction with a previous explanation submitted by the Justice Department’s top career official, Associate Deputy Attorney General Bradley Weinsheimer. Weinsheimer said he had checked with an unidentified official in the White House counsel’s office and determined that no new declassification was triggered by Trump’s latest tweets. However, Walton said given Trump’s suggestions of a rogue element undercutting his orders, some assurance directly from the president or someone who had spoken to the president was necessary. As Meadows had, one presumes, literally spoken to the president, this satisfied the presiding judge's own explicit standard of "sufficient guarantees of trustworthiness" for when hearsay may be admitted into evidence. Rule 807(a)(2) is also relevant here, in its caveat that hearsay may be accepted into evidence when it is "more probative...than any other evidence that the proponent can obtain through reasonable efforts". Arguably, forcing the POTUS to neglect his duties running the country and "ending the pandemic" long enough to testify in what is, in many ways, a run-of-the-mill FOIA case, would take too much effort to be "reasonable". Which brings me to the next point: Rule 804(a)(1) and Rule 804(b)(5), "Unavailability of the Declarant" Rule 804(a)(1) discusses a specific exception to the hearsay rule when the declarant can't or won't personally testify: (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies As POTUS, it makes sense that Trump would have some degree of privilege or immunity from being deposed. If a sitting President could be dragged into court at will over any government litigation, no matter how mundane, to personally testify, it would be impossible to perform the functions of their office. Think about all of the live issues winding their way through the courts right now that Trump has tweeted about. Now, imagine the demands on his time if he was dragged into court to testify regarding every single one: "Sorry Angela Merkel, I have to cancel our international summit this year, I'm giving a live deposition in 50 different court cases in the next three weeks and I don't have time to do 'foreign policy' right now. Hope no new World Wars break out! Good luck!" Of necessity, a POTUS has to be permitted to delegate 99.9% of legal representation on matters of public policy to other Executive Branch officials, when it comes to who actually needs to be physically present in court. And since he is privileged from personally testifying, that means exception 804(b)(5) applies: (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: .... (5) [Other Exceptions .] [Transferred to Rule 807.] We discussed how Rule 807 applies in this circumstance up above. But I want to circle back to the idea that the President has to be able to delegate statements of official policy to other authorized government representatives, such as Meadows, because of the clinching exception: Rule 803(8)(A)(i): Public records of governmental policy aren't excluded by the hearsay rule Rule 803(8)(A)(i) tells us that: statements of public policy (such as, whether the government is going to declassify, or has already declassified, every document relating to the Russia investigation, specifically including Mueller report and FBI interview redactions) made by public offices or their official representatives (such as the POTUS's chief of staff, authorized to speak on behalf of the POTUS, clarifying the Executive Branch's stance on declassification) are not excluded by the hearsay rule: The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: .... (8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities This makes sense given the purpose of the rule against hearsay. It's supposed to prevent innuendo and rumor from sneaking into the factual record when the facts are in dispute: "I heard the defendant's mom say the defendant said he did it," related by the defendant's mom's bingo buddy, would deservedly raise some eyebrows around the bingo table, but isn't the kind of solid evidence an impartial trial requires. Statements of public policy and government action by public officials, on the other hand, have a lot more authority and credibility than what a friend of a friend of the defendant heard the friend say the defendant said. Meadows isn't (just) some random golf buddy of the President who overheard what the President was thinking when he made these tweets; he's the President's official delegate to the court, conveying the Executive Branch's official position on declassification. Such official statements are ordinarily presumed maximally trustworthy and reliable, at least partly for logistical reasons. Similar to how we can't ask Trump to cancel all the COVID task force meetings to clear his schedule and testify about some tweets, we can't drag every government officer who makes an out-of-court official public statement or record into court to certify it--at least, not every single time. The judicial branch of the government takes the word of other branches of the government mostly at face value†, and does not consider public records or statements in an official capacity as "hearsay" to be excluded from evidence. So the TL;DR version is: No, Meadows coming into court to convey this statement on behalf of his boss would not be excluded by the hearsay rule. †Significantly, statements or records regarding policy might be excluded as hearsay, per 803(8)(B), if the opposition demonstrates that the statement or record is somehow fishy or unreliable: "(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness." But in this instance, in order to demonstrate a "lack of trustworthiness", the plaintiffs in the case--BuzzFeed, CNN, and the Electronic Privacy Information Center--would have to show that the government was actually declassifying and unredacting all material related to the Russia investigation, contrary to what Meadows claimed in court. Since the government is not actually doing this, the President's social media rants notwithstanding, the plaintiffs would be unlikely to prevail if they tried to use 803(8)(B) to get Meadows' testimony excluded as hearsay. | Federal facilities are required to adhere to the flag code. Non-federal governmental entities are not, and the explanation is more complicated. In theory, the federal government should have very little power over the decision-making of state governments -- this is a principle of federalism and is expressly stated in the 10th Amendment. In practice, however, the federal government has a lot of power over state governments. Congress can condition the allotment of federal monies to states, i.e. block grants, as long as such a condition meets the five point test spelled out in South Dakota v. Dole. The most stringent of these points is that the condition "must not be coercive" so as to apply "irresistible pressure", creating a false choice where accepting money is the only realistic option (thus complying with the conditions). I couldn't find a clause within USC Title 4, Chapter 1 for withholding funds from states in the event of noncompliance, similar to one that exists for the national drinking age. Therefore states (state, county, municipal all treated as an extension of state power under the US Constitution) are not required to to adhere to the flag code. Theoretically, Congress could pass a new law that would condition the receipt of some federal funds on the states' compliance with the flag code. But the new low could face additional hurdles, since the condition must be "directly related to one of the main purposes for which... [the funds] are expended" (quoting from Dole). This restriction is the reason why states were given the right to opt out of the Obamacare medicare expansion without losing their pre-existing Medicaid funding (567 U. S. ____ (2012) at 51), and is also the reason why the recent "Sanctuary Cities Ban" is having legal trouble. It would be unlikely that any law like this would hold up. It's also worth noting that most states have their own flag law, which makes this whole discussion of the federal law's effect on state facilities. As you noted, since US v. Eichman, all criminal penalties for violating any flag code have been unenforceable against individuals. My best guess is that the proper method of enforcement in federal buildings is simply administrative action, since violating the code can provide cause for firing federal employees under Chapter 75 of the Civil Service Reform Act of 1978. | "Seditious libel" has happened before, but not in the US. This comes up in NY Times v. Sullivan, which notes that For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. This Volokh article gives various citations showing that a government entity cannot sue for libel. | I would say no, it's not the same. There's a reasonable expectation of privacy that you have in an office that isn't present when you're standing on a roadside or in a city park. In Glik v. Cunniffe, the First Circuit said "The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities" was in the spirit of the First Amendment. And this is not limited to police; an arrest "in the course of filming officials in the hallway outside a public meeting of a historic district commission" was found to be a First Amendment violation in Iacobucci v. Boulter (1st Cir. 1999). But a private meeting in an office is not a "public place" as it is meant in Glik (even if the building is owned by the government.) And the Glik decision says "To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions." | Yes, once law is passed and Facebook is designated under it as a "designated digital platform corporation" then it will be obligated either pay remuneration to all "registered news business corporations" in Australia for content they voluntarily post on Facebook, or not allow any Australian news on their site at all. The same applies to Google and in theory any other digital platform corporation designated by the Australian government. The law makes no distinction according to where the content is shown, but only Australian news businesses can benefit from it. The purpose of the law is to "address a bargaining power imbalance that exists between digital platforms and Australian news businesses" and amends the Competition and Consumer Act 2010 to create a "News Media and Digital Platforms Mandatory Bargaining Code". Currently Australian news companies, like any other Facebook user voluntarily posting content on the site, are paid nothing by Facebook. Similarly, Google doesn't pay anyone for the content the indexed on their site, essentially also voluntarily, since it's trivial to opt out of this. The Australian government sees this as the result of unfair competition. According to them, Facebook and Google have abused their power to force Rupert Murdoch's News Corp and other Australian news companies to agree to put their content on their sites for free. This new bargaining code seeks to solve this problem by forcing designated digital platform corporations and registered news business corporations into final offer arbitration over remuneration if they can't come to a negotiated agreement. Any arbitration determination would require that Facebook or Google to pay some amount of remuneration, and the determination would be based in part on "the benefit (whether monetary or otherwise) of the registered news business’ covered news content to the designated digital platform service". This would include the benefit they receive by showing the content outside of Australia. A key part of the law is it's "non-differentiation" requirements. This would prohibit Facebook and Google from showing or indexing Australian news corporations' content differently depending on whether they're forced to pay them money or not, or even whether they're an officially registered news business or not. This means Facebook and Google aren't allowed to choose to show some Australian news businesses' content and not others. If they show any of their content then they must show content from them all. If they show content from a registered Australian news business anywhere in the world then they must pay for it. This leaves Facebook and Google with three options if the law passes: Pay for news content from all registered Australian news business. Don't show or index any Australian news business content. Remove their presence completely from Australia to prevent Australia from enforcing their law on them. | The United States has a very liberal attitude when it comes to free speech. Short of materials that are: child pornography, restricted under the International Traffic in Arms Regulations (ITAR), Libelous/Fraudulent, encourage or aid others in breaking the law, or seditious/treasonous/ terroistic/other credible threats there is almost nothing that can't be published. There is another example where supposedly The Golden Book of Chemistry Experiments was banned by the US Government, but I cannot find any evidence or action against the author to support the claim. The Political Mofia by Schiff was not neccessarily banned, but an injunction from publishing was issued against the authors in US v. Schiff, 379 F. 3d 621 - Court of Appeals, 9th Circuit 2004 per 26 U.S.C. 7408 on grounds that the books was fraudulent. Essentially it is the Federal courts that can ban a book from commerce with cause. Schools, libraries and other institutions may ban it from their collections, but not from public commerce. Wikipedia has a list of Books banned by governments that you may want to look at to find examples. | The Copyright Office has determined, in chapter 300 of the Compendium of U.S. Copyright Office Practices, on page 36, that the copyright bar extends to works created by the President; Congress; the federal judiciary; federal departments, agencies, boards, bureaus, or commissions; or any other officer or employee of the U.S. federal government while acting within the course of his or her official duties. So the Senator is a US employee for copyright purposes, at least according to the US Copyright Office. Technically, this is interpretation rather than law, and in theory a court might disagree, but if anyone is qualified to speak on this issue, it's the Copyright Office. In my opinion, it is most reasonable to assume that the Copyright Office is correct in their interpretation unless there is case law directly contradicting them. The only question is whether the letter was created by the Senator "while acting within the course of his or her official duties." I'm not aware of any case law suggesting that constituent building is or is not an "official duty" of a US Senator, and there are reasonable arguments to be made in both directions. On the one hand, the letter is clearly beyond the scope of Congress's lawmaking and oversight Constitutional functions. On the other, the office of Senator is an inherently political office, and a case can be made that campaigning for reelection is part of the job. Perhaps surprisingly, that question was extensively litigated during E. Jean Carroll's first defamation lawsuit against Donald Trump, because Trump argued that his statements about Carroll were within the scope of his employment (and so a defamation claim would be effectively barred under the Westfall Act). To my understanding, the current disposition of that lawsuit is that this is considered a question of fact for a jury to decide (at least according to the Second Circuit). What can be said is who does not hold copyright: The US Senate and/or the US government as a whole. The only way the Senate could acquire copyright in this letter (short of the Senator directly granting it to them) would be as a work made for hire, but the work-for-hire doctrine requires that the work be prepared by an employee as part of their official duties, just like the federal copyright bar. So the Senate cannot acquire copyright in this manner. If anyone owns the copyright, it is most likely the Senator. |
Can we be sued for using a meme for naming our company? Once something like a meme goes viral and is widely used by people, it cannot legally function as a trademark, he said. It will typically take the office around four months to deliver a decision on the applications, Mr. Gerben said, but a pending application should not stop a company from beginning work. Let's say we use the name "Ok Boomer Trading Company". Since we can't trademark a meme, we can't sue other people for using a similar name, but can we be sued by someone for using a meme, which is public domain? I am wondering if we can be sued outside of trademark or copyright reasons for using a meme in the naming of a company or product since it may cause confusion of sort or because we're using something that is in the public domain, which may hurt the public interest in some way. | A phrase which is too generic or in too wide currnt use to be a valid trademark, may nevertheless be used as a business name or slogan. For example "Good Pizza" is so generic that I am reasonably sure that it could not be registered as a trademark, but a business could use that as a name or slogan. A business that did so would forgo any of the advantages of trademark protection or of having a clearly unique name, but as no one else owns trademark rights to the phrase either, no one could sue such a business over its choice of name, or not with any hope of success. Similarly, if a phrase taken from a meme cannot be registered, no one else can have it as a trademark, and so no one can sue successfully. As to copyright, names, titles, and short phrases are simply not protectable by copyright at all. See the US Copyright office circular 01 "Copyright Basics" which says on page 2; Copyright does not protect ... Titles, names, short phrases, and slogans Circular 33 "Works Not Protected by Copyright" says on pages 2-3: Names, Titles, Short Phrases Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words. Examples of names, titles, or short phrases that do not contain a sufficient amount of creativity to support a claim in copyright include: The name of an individual (including pseudonyms, pen names, or stage names) The title or subtitle of a work, such as a book, a song, or a pictorial, graphic, or sculptural work The name of a business or organization The name of a band or performing group The name of a product or service A domain name or URL The name of a character Catchwords or catchphrases Mottos, slogans, or other short expressions As for ... if we can be sued outside of trademark or copyright reasons Trademark and copyright are basically the only kinds of suit likely to be brought over a business name, logo or similar identification, particularly in the fact patter discussed in the question. (However, see the section on "fraud" below.) Things that are in the public domain are free for anyone to use, not protected against anyone's use. What is not permitted is trying to claim an exclusive right to PD items., by a copyright or trademark claim. The one exception I can think of is that if someone had established a phrase as a trademark, and it later became a meme, then perhaps the trademark owner could sue over uses of it. But with the phrase having become generic, it might well lose any trademark protection. The first thing a plaintiff must do in presenting a trademark suit is establish that the mark is a currently valid trademark, owned by the plaintiff. If the mark is not a valid tm, the suit is over because it has no protection. Fraud A comment states: ... Intentionally misleading others to believe you are a particular party using a non-protectable name, when in fact you are a different party, seems like fraud, and it very much hinges on the name/similar identification. In the fact patter from this comment, the name is derived from a meme, and so there is no other particular person. In that case one cannot plausibly be deceiving anyone into thinking that a business is actually a different business, because there is no business which is uniquely identified by the name. Still, it is possible for fraud to occur in a fact pattern similar to this. Say a local store calls itself "good pizza", a name not protect able as a trademark, because it is too generic. But it is popular and has a good reputation. Another store, hoping to confuse customers, calls itself "Goode Pizza". A customer calls "Goode Pizza" and aks "Are you the Good Pizza on George Street?" (which is the location of the first store. An employee answers "Yes" (falsely) and the customer then places a delivery order. That might be fraud. For a fraud case, in most jurisdictions, it must be proved that: A person knowingly made a false statement (or in some jurisdictions an intentionally misleading statement"); with the intention of getting a financial advantage, or depriving another of an advantage or benefit; The statement was material to the transaction (meaning that the other party might well have not agreed to the transaction, or demanded different terms, in the absence of the fraudulent statement); The other party relied on the fraudulent statement; it was reasonable for the other party to rely on the fraudulent statement; and harm was done to the other party as a result of this reliance. Some jurisdictions omit or modify some of these elements. In the Good Pizza / Goode Pizza scenario above, ther is a knowingly false statement. Since the customer asked about the identity of the store, it can be assumed that it was material to the transaction. The imitation of the other store's name suggests an intention to mislead, although more proof might be needed. There was reliance, and it was probably reasonable. What is not clear is the harm done -- additional evidence might be needed on that element. This scenario is, however, rather different from the situation discussed in the question. Note that in the US, trademarks can be protected from mere use, without registration, if they otherwise qualify. In general there will be a preference to frame such a case as one of trademark infringement, rather than fraud, if possible, because fraud is usually harder to prove (trademark infringement dose notr require proof of intention to mislead nor of knowing falsehood), and statutory damages may be available in a trademark infringement case, without any need to prove actual damages. Also, the competing store would generally not be able to bring a fraud case, only the customer who was mislead. could do so | The question mentions copyright, but corporate logos are more often protected by trademark law. There are significant differences in the protections afforded, and in where actions can be brought. Copyright Simple logos may not be subject to copyright protection at all. Individual words and short phrases, such as business names and slogans, are generally not protected. But let us assume that the logo in question is a graphic design of sufficient complexity and originality to be protected by copyright. Copyright offers essentially international protection, and the Berne Convention and the TRIPS agreement ensure that the rules are in many ways similar in almost all countries. One can sue in the copyright owner's jurisdiction, or in any jurisdiction where infringement occurred. If the defendant has a presence in the selected jurisdiction, collection of any damages will be significantly easier. Scenario from the Question If I have understood the question, the logo was originally created by P (or more likely by a designer hired or contracted by P) and P holds the copyright on the logo. But S has obtained the logo via B, presumably at a lower price than P would charge. Neither B nor S, I assume, has permission from P to use the logo. B's action in selling the logo to S would be copyright infringement (unless B independently created an identical or similar logo). S's action in using the logo without permission from P is also copyright infringement. P could sue S, or B, or both in Spain, or in its home jurisdiction (perhaps the US), or in other jurisdictions where the pirated logo had appeared. Actual damages, however, will be limited to the value of the logo (say what P would have charged) plus profits made from the use of the logo. But since S is not selling the logo, it will be hard to determine what part, if any, of its profits derived from the use of that particular logo. That is, how much smaller would its profits have been if it had used a different, non-infringing logo. In the US statutory damages are available, which can be as high as $150,000 per work infringed, if the infringement is proved to be "wilful". But that is the upper limit of statutory damages, and the judge has wide discretion to set the amount of the award between the upper and lower limits. (The lower limit is $750.) Modified Scenario Suppose that P had sold an exclusive license to U. U is a US-based firm that is actually using the logo to identify its goods, which are distributed world-wide. The actions of B and S have infringed U's licensed rights in the logo, and U could bring suit for copyright infringement, either in the US or in Spain, or perhaps in other countries. But U would have much the same problem as P, it will be hard to prove sizable damages. Which brings us to trademark issues. Trademark Claims Trademark law is usually used to protect words, symbols, and images used to identify products and services being sold or advertised for sale or rental. Unlike copyright, trademark protection does not expire if the mark remains in use. Also, unlike copyright, single words or simple images can be protected. For example, the "red dot in a circle" logo of the Target stores is too simple for copyright protection. But it has strong protection as a trademark. Trademark protection applies in any case where a reasonable person might be confused as to what the source of the goods (or services) really is. It also applies when the mark's use falsely gives an impression of approval or sponsorship by the trademark holder. Unauthorized use of a mark to benefit from the goodwill or reputation associated with the original product or its makers is infringement. Trademark protection, however, is national. A mark protected in one country may be totally free for use in another country. It is also usually limited to a particular category of use If, say "Scarlet O'Hara's" is used as a trademark for a restaurant chain, the use of "Scarlet O'Hara's" for an anti-virus program is not likely to constitute infringement. Copyright has no such limitations. In some countries there is no protection for a trademark unless it is registered. In other countries, use alone can establish a trademark. The US allows protection without registration, although registration brings stronger protection. Also, trademarks can only be protected when they are actually being used "in trade", that is, to identify or advertise goods or services, or for a limited time while a product is being developed and there is a declared intent to use the mark in the near future. Lack of use or cessation of previous use can cause a mark to lose protection. Scenario from the Question P is selling logos, not using them to identify or market products. Thus it is not using the logo in trade, and has no trademark claim. It cannot sue anyone for trademark infringement, because it has no trademark rights. Modified Scenario (see above) U is using the logo as a trademark world-wide. If it has registered the logo in Spain, or taken such other steps as Spanish law requires, it can perhaps sue S for trademark infringement. It has no trademark claim against B, because B did not use the trademark to identify any goods or services. For a successful suit agaisnt S, U would need to show that confusion between U's products and those of S had actually occurred, or was likely. It would need to show that the products where the logo was used were of a sufficiently similar nature. But if it prevailed, damages could be based on the value of the trade identified by the logo. If S did not sell or market its products outside of Spain, it could only be sued for trademark infringement in Spain. If U did not sell in the Spanish market (or perhaps the wider EU market) it would have no trademark claim. If S started importing its products using the logo into the US, U would have a claim under US trademark law. Thus the details of what logo is used, where and how, and on what products would matter to any trademark claim. | In the US, at least, facts - like the speed of light, the name of a dinosaur or the moons of Jupiter - are not copyrightable. But the words or pictures, designs and original work used to express and present those facts in books, websites and other publications by individuals and publishers are copyrightable. (Original work doesn't need to be published to be copyrighted; it is copyrighted at the moment of creation.) See How can "factual" intellectual property be protected? Plagiarism can be copyright infringement; it's copying and presenting work of someone else's as your own. But not all copyright infringement is plagiarism in the sense that someone is claiming others' work as their own: if you're selling a T-shirt with an unlicensed design, you're not really claiming the design is yours; you're just trying to make money. If you use all or part of an image or a quote or a song from a copyrighted source in your own work, you need permission and attribute the source. Or, you have to decide if the amount of the copyrighted material you are using might be Fair Use and you don't need permission. But decisions on what might constitute Fair Use are ultimately decided in court, because that's where can you end up when a person or a publisher sues you for alleged copyright infringement. | This is likely not fair use. At first blush it appeared similar to things one might see in The Onion (parody print and online newspaper) or other parody publications or shows (SNL, Key and Peele, etc.). In this case, the context would have likely been deemed transformative. However, since they are selling coffee called "Dumb Starbucks" while using their trademark, they would be be found liable if sued. You can parody a trademark brand, so long as the work is transformative such that the use of the brand goes from selling coffee to making a commentary in which the brand itself is relevant. Amendment I don't think this would pass the test as a parody/commentary. Originally, I failed to notice that they are actually selling coffee. This takes it out of fair use and they would almost certainly lose if sued. If they never sold the coffee, but just had it open as a performance art (like I had originally read this) giving the coffee away to complete the parody, I think they'd be fine. However, they are literally using the Starbucks logo, and selling the same product. This is clearly an infringement of their copyright and not fair use. Sorry for the confusion. | 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. | You cannot use the libraries trademarks, but that does not stop you from using your own. For example, you cannot use the name Twitter Bootstrap to endorse, promote or use as the name of your project. | Generally you can only use logos (i.e., symbolic trademarks) if you have the trademark owners' permission. You may certainly use the names Cisco and Microsoft nominatively, although they might ask you to provide a disclaimer of any affiliation including sponsorhip or approval, if it gets to them. "Not making any money" is also not the sole determinative factor in proving your defense of "fair use". | The length of a literary work doesn't determine if its use is fair use. Copyright does not cover names, titles of works, catchwords/catchphrases/advertising slogans etc. or lists of ingredients (like in a recipe or chemical instructions), however, the procedure can be copyright. The work must also be original. If the tweet copies something that already exists then there is no copyright in the tweet - if the thing that is copied has copyright protection then the tweet itself may be a violation. That said, assuming that the Tweet enjoys copyright protection, the owner will be the author: presumably the owner of the Twitter account. For anyone else to legally use it, the use must be either: Licensed by the copyright owner Fair use (USA) or Fair Dealing (most everywhere else in the English speaking world) For Item 1, the Twitter terms of service say: You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). In case you don't know what that means, Twitter gives you this plain English summary: Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same. So, you can get permission from the copyright holder or from Twitter. Well, Twitter has given permission: Except as permitted through the Twitter Services, these Terms, or the terms provided on dev.twitter.com, you have to use the Twitter API if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Twitter Services or Content on the Twitter Services. Providing you use their API, you can "reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the ... Content ..." Therefore, fair use/dealing considerations are irrelevant. |
Does Amazon prohibit a family of adults from sharing a single Amazon account? In Amazon's Conditions of Use, the section "License and Access" says the following: Subject to your compliance with these Conditions of Use and any Service Terms, and your payment of any applicable fees, Amazon or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Amazon Services. Also, the section "Your Account" says the following: You are responsible for maintaining the confidentiality of your account and password and for restricting access to your account, and you agree to accept responsibility for all activities that occur under your account or password. Amazon does sell products for children, but it sells them to adults, who can purchase with a credit card or other permitted payment method. If you are under 18, you may use the Amazon Services only with involvement of a parent or guardian. Parents and guardians may create profiles for teenagers in their Amazon Household. However, Amazon Household is limited in how many profiles can be created. For example, you can only have two adult (18+) profiles per household. If a family of more than two adults would like to share a single account instead of getting involved with Amazon Household, would they be in violation of Amazon's terms, whether in the section above or elsewhere? Update I have just noticed an additional statement of significance in the terms: By using the Amazon Services, you agree, on behalf of yourself and all members of your household and others who use any Service under your account, to the following conditions. Might this suggest that the agreement is broad enough to apply not only to one individual but also to the individual's "household" (and maybe even to "others who use any Service under your account")? | Does Amazon prohibit a family of adults from sharing a single Amazon account? No, or at least it seems unlikely. As outlined in my answer & comments on Law Meta, a domestic or family-oriented character is palpable in the clause. That weakens the notion that Amazon's intent is to preclude scenarios which are of a personal-domestic nature and short of commercial/sublicensed use. The language "You are responsible for [...] restricting access to your account" seems more permissive than something akin to "only you are allowed to access your account". The former language is consistent with the term "non-exclusive", which otherwise seems to have no relevance or purpose in the clause. Users' ability (if any) to enter multiple payment methods with different names (i.e., card holder name) could be an additional indication that the scenario you have in mind is acceptable to Amazon. It is easy for a company to implement a validation for the purpose of identifying significant discrepancies of holder names and/or to have the user confirm that all payment methods refer to one same owner. The latter approach is more conclusive for scenarios where a woman has changed names as a result of getting married or divorced. The fact (?) that Amazon declined to include that simple validation weakens the notion that the company is genuinely interested in sticking to a rule of one-person per account. | We cannot dispense personalized legal advice: that is what your attorney is for. However, I agree with your analysis that this is most likely covered by fair use, and indeed it is not obvious that you have taken anything that is protected. There is no creativity behind a number such as entries in the "I did N pushups" column. The arrangement of data into a web page passes the smidgen of creativity test, but "210" is not a creative number. The terms of service of a website cannot negate your right to use the website however you want in a non-infringing way. If your use is "fair use", then they can't tell you that you can't use it. In case it turns out that "fair use" fails, the matter would hinge on what exactly the TOS says. They may have granted you permission to make use of their "information". So there are three positive avenues for you to consider: not protected, fair use, and permitted. A practical difficulty is that a university lawyer is only interested in the interests of the university, and they are as likely to say "don't do that" or "get permission" as they are to say "that is fair use". You can hire a lawyer who is paid to care about your interest, though there is never a guarantee that the lawyer's advice is correct. I think it is likely that the lawyer will tell you to not say anything until legally forced to, given the apparent rebuff of your request for special permission. | Does CCPA impact whether or not this is allowed? Probably not. Public schools are divisions of state government and there are limits to how much the federal government can dictate the operations of state and local governments. Limitations on whether public schools can monetize data collected from students (13+) would arise under state law. The state law could certainly expressly authorize the practice (and to some extent does already with profit generating sports teams and yearbooks). State law could likewise prohibit the practice. For the most part, state law is silent and it doesn't happen that much because it isn't very profitable. Is there different guidance for public (government-managed and nonprofit) vs private schools? The legal analysis is very different. I'm not as familiar with this area of law, however, and will leave that question to someone else. As a practical matter, private schools are in a very good position to obtain express consent to do so from parents and students, so that is usually how the issue is resolved, I suspect. | Business question Since a license agreement/terms of use document is a contract between the publisher and the end-user, and since minors are prohibited from entering into legally binding contracts in most U.S. states, how can any sort of terms be legally enforceable? Legal question May an online publisher enforce its product license agreement/terms of use against a minor ? Answer Yes, an online publisher can enforce its product license agreement/TOU against a minor until such time the minor voids the agreement. Discussion The opinion of the court in C.M.D. v. Facebook 2014 WL 1266291 (N.D. Cal. Mar. 26, 2014), Inc. discusses this very legal question and clarified that terms of service of Facebook are enforceable against minors who use websites and further suggests that to disaffirm such terms of service, minors likely must terminate their accounts and stop using the website. The key question in front of the Judge in this case was whether the contract at issue between minors and Facebook - was one of the narrow types of contracts with minors that were void, or if the contract was merely voidable under California Family Code 6701. The court rules in favor of Facebook. | You can't grant or license that which is not yours. For example, the Slack terms of service say: We grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Contract and the User Terms. So Slack's agreement with Org A does not give A any right to let any other organization B use the software. It does not matter how A and B are related, nor whether B is nonprofit or for-profit, nor what A would be getting in exchange. If B wants to use it, they need to make their own agreement with Slack. | 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 | 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. | Unfortunately the answer is a vague "it depends." Commercial versus non-commercial is not clearly defined in actual law, and is usually up to the specific license to define what it considers to be commercial use. If you were putting them on your business cards, then it's just being used for advertising and whether it's commercial use is a bit controversial. If the license explicitly prohibits the use of the work in advertising, then the license should explicitly mention that and should not rely on the term "commercial use" to cover or protect it. Creative Commons ran an excellent study on commercial versus noncommercial use back in 2009: Defining “Noncommercial” - A Study of How the Online Population Understands “Noncommercial Use” In the United States, for example, the Copyright Act does not define a copyright owner’s rights in terms of commercial or noncommercial use. Instead, copyright law sometimes attaches legal significance to whether a use is “commercial” or “noncommercial” or whether a user is deemed to be a commercial or noncommercial entity, However, rarely are the terms defined, and the law offers no specific guidance on how to differentiate between commercial and noncommercial uses or users of copyrighted works. If you were putting them on a business card you were making for the client, then that would be more clearly identified as commercial use because you're using it in something you are selling for a profit. What your client will be using them for is not relevant, because you're the one selling them to the client and you need to have the right to be able to do that. |
Does it constitutes infringement if I translate and share the news and videos of the BBC, Fox etc on my WeChat official accounts? I am a university student from China. I want to learn English by reading foreign publications and watching foreign news vedio such as BBC, Fox news, etc. And I am preparing to translate it into Chinese and subtitle the news video, then I will share it on my WeChat official accounts in order to let more people improve English. At the end of the article or video, I will give the source(including author's name) of the news or vedio and I won't request a fee to my readers, means I don't commercialize the source news and I don't profit from it. Does it still constitute infringement? If it does, how to solve it? | Yes. This is infringement. This infringement might be excused by a "fair use" defense but it probably isn't. At a very small scale tailor to a very specific educational program, for example, for just members of a thirty person English class that they are currently taking, it might qualify as educational fair use. But I get the impression that the contemplated translation project is far more ambitious than that. The underlying content of the events reported in the news are not protected by copyright, but the language used to report those events and any translations of that language, is protected. The only reliable way to solve it is to get permission to do so from the holder of the copyright of the source of the new reports you are translating. | 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. | 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. | What SE can do is controlled primarily by the Terms of Service. What most matters is the section on Subscriber Content, which says: You agree that any and all content, including without limitation any and all text, graphics, logos, tools, photographs, images, illustrations, software or source code, audio and video, animations, and product feedback (collectively, “Content”) that you provide to the public Network (collectively, “Subscriber Content”), is perpetually and irrevocably licensed to Stack Overflow on a worldwide, royalty-free, non-exclusive basis pursuant to Creative Commons licensing terms (CC-BY-SA), and you grant Stack Overflow the perpetual and irrevocable right and license to access, use, process, copy, distribute, export, display and to commercially exploit such Subscriber Content, even if such Subscriber Content has been contributed and subsequently removed by you... This means that you cannot revoke permission for Stack Overflow to publish, distribute, store and use such content and to allow others to have derivative rights to publish, distribute, store and use such content. The CC-BY-SA Creative Commons license terms are explained in further detail by Creative Commons, but you should be aware that all Public Content you contribute is available for public copy and redistribution, and all such Public Content must have appropriate attribution. This part has not changed: the purported license is still "CC-BY-SA", and the TOS does not explicitly specify a version. What apparently has changed in the relevant section is one "helpful information" link, which now points to https://creativecommons.org/licenses/by-sa/4.0/. So the interesting question arises whether that would constitute an unpermitted post-hoc change in the terms by which SE has license to my older stuff. This matter came up in a reviled Meta question; as I pointed out, the TOS also included a merger clause that This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between You, the Network and Stack Exchange with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. Because of that, the TOS is self-contained and stuff found on other web pages are not part of the agreement. This in itself is a bit of a problem because you can't both say "we're not bound by stuff outside of this page" and say "the specific terms of the license are outside this page". That particular clause is gone, but there is an analog in the current TOS: These Public Network Terms represent the entire agreement between you and Stack Overflow and supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the public Network or Services or Products contemplated hereunder. Furthermore, the TOS contains the following "we can change it" clause: Stack Overflow reserves the right, in its sole discretion, to modify or replace these Public Network Terms, as our business evolves over time and to better provide Services and Products to the Stack Overflow community, or to change, suspend, or discontinue the public Network and/or any Services or Products at any time by posting a notice on the public Network or by sending you notice via e-mail or by another appropriate means of electronic communication. I assume but do not know for a fact that a similar clause existed in prior versions of the TOS. So I conclude that the change is legal. | may require that you obtain license rights from third-party owners or licensors of content that you include in your text inputs (Emphasis mine). Based solely on the excerpt above, yes, you have the copyright on the audio files if you created the source material, as you are the creator, using Amazon Polly as/to generate a "tangible medium". One of the central rights granted by copyright is to control translation into a different medium (in this case, from text into audio), as is the right to control distribution, which is what this excerpt is talking about. "Third party" in this case means neither you nor Amazon. Basically, Amazon is informing you that using their software on someone else's copyrighted material does not grant you copyright on the audio recording. | Unless you hire your friend cameraman, he will own the copyright. So sign a contract with him: you give him $1, he disclaims and/or grants all the copyright to you. Make sure this is actually in writing because, otherwise, presumption of no intention to create legal relations applies as you are friends. | Social media platforms are not publishers under UK law (at present), as such, they are not legally responsible for the content they host providing that there is a mechanism for alerting them to infringing material and that, when alerted, they remove it. As to "why", that is a political question. | A document can be distributed under more than one license. Just because it has been made available under a CC license for free, doesn't mean that IEEE can't negotiate a different license with different terms that allow them to sell the content. (This is similar to the way that a software library can be available for free under a license that permits non-commercial use, but also be made available for a fee for commercial use.) If you want to know whether IEEE is legally selling Aaron Swartz's manuscript, you can contact Morgan & Claypool, the publisher that owns the copyright, and ask them whether this use by IEEE has been authorized by them. For the other documents you mention, contact MIT Press. Etc. |
How is "publication" different in copyright and defamation cases There has been some confusion here on Law.Stack exchange as to whether "publication" or "publish" has the same meaning in defamation cases as it does in copyright cases. I am collecting sources to answer this myself for the US, but I am also interested in answers for other jurisdictions. | united-states Copyright 17 USC 101 says: “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. Note that the key element is distribution or offering to the general public. It has been held that distibution to only a small, selected group of people does not constitute publication in copyright law. Prior to the US 1976 Copyright Act, publication was a vital concept in US copyright law, because Federal copyright protection applied only after publication, and most copyright terms were measured from the year of publication. Publication without a copyright notice was usually fatal to US copyright protection. Since the 1976 law became effective (in 1978), the concept of publication is much less vital, but can still be important in copyright law. Copyrights of works made for hire or other works with corporate authors are calculated from the date of publication, not by the life of the author. Registration is effective to preserve the right to statutory damages if it occurs within three months of first publication. While fair use can apply to unpublished works, courts are generally less willing to apply it than they would be for published works. Publication may be significant in other aspects of copyright law as well. Defamation In the context of defamation "published" simply means "communicated to a third person" The communication need not be to the public at large. The LII page on Defamation defines "publication" as communication of [the defamatory] statement to a third person Nolo's page on "Defamation Law Made Simple" says: "Published" means that a third party heard or saw the statement -- that is, someone other than the person who made the statement or the person the statement was about. "Published" doesn't necessarily mean that the statement was printed in a book -- it just needs to have been made public through social media, television, radio, speeches, gossip, or even loud conversation. Of course, it could also have been written in magazines, books, newspapers, leaflets, or on picket signs. The page on "Publication and Libel Laws" by LegalMatch says: Publication is the delivery or announcement of a defamatory statement to another person through any medium. With respect to libel, the defamatory statement must be communicated through a tangible medium ... Generally, publication occurs once a single individual sees or hears the defamatory statement. However, America has a long history of protecting free speech. As a result, courts will sometimes require more action than just the act of seeing a defamatory statement in print to determine when publication occurs ... The exact time of publication is very important in a libel case. Generally, the time of publication will have an effect on a libel case in two ways: Statute of Limitations – Depending on when the publication of a defamatory statement took place, that is when the period of limitations begins to run. Knowing the exact time of publication can be very important if a statute of limitations is at issue. Damages – The time of publication can have a large impact on the damages a defamed person can recover. Generally speaking, the earlier the date of publication, the more damages a person has suffered. The Law Dictionary's page on "How Do You Prove a Defamation of Character Claim? says: The interesting thing to note about publication is that it’s not in the modern context, where it’s been published. It just means that it was done in a way where other people heard, saw, read, or otherwise came across this harmful lie about you. IE: it was public in some way where a third party was exposed to the statement. Exception: Confidential Communication If an allegedly defamatory statement is communicated to another in confidence or as a privileged communication, this often will not constitute "publication" for the purpose of a defamation action. For example, if it is part of a lawyer/client communication, or a privileged marital communication, or an employee/employer communication made in confidence or protected by an NDA, it might not count as publication. The Difference The key difference is between providing a work to the general public (copyright), and communicating a statement to any third party (defamation). In addition,. publication is an essential element of any defamation claim, but only sometimes a relevant fact in a copyright claim. My understanding is that this will also be true in most common-law countries, and possibly in some civil-law countries as well. But I cannot support that with sources. | 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. | German perspective: In German law, there is the concept of Schöpfungshöhe (threshold of originality), which is required for authorship rights (Urheberrecht) to apply to a work. Basically, the idea is that a minimum of creativity is required for something to be protected. However, that bar is rather low. Thus, for example: Literary works are protected practically always. Maps are generally protected, even though you might argue they "slavishly copy nature", because the act of choosing what to show and what not is already creative. However, a faithful photographic reproduction of a painting is not eligible for Urheberrecht to apply (LG Berlin, AZ 15 O 428/15) So yes, a "slavish copy" of a work would not qualify for protection if there is no creativity involved. Note, however, that other types of protection apart from Urheberrecht might apply, such as Sui generis database right. | Not very novel What you are talking about is a derivative work. This is arguably the most famous example: It's an interesting example because Leonardo da Vinci did not have copyright in the original but Marcel Duchamp and Francis Picabia do have copyright in the derivative. Even though the changes are physically small, they are enough. A crucial factor in current legal analysis of derivative works is transformativeness, largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc. The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the parody of "Oh, Pretty Woman" involved in the Campbell case. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is. For an author to have copyright in the derivative they must: Meet the (low) threshold of originality for copyright to exist. Make their derivative lawfully - either because they have permission or because their use falls under an exception to copyright like fair use or fair dealing. However, they do not have copyright in the original elements. For example, I could take the Mona Lisa and give her different clothes, a different background or a hat I will not be infringing their copyright. If I give her a different style of moustache? However, there is an issue with "I have copyright on the contents of the post" when you don't. Even if your work is derivative, you do not have copyright in the original parts and do not have the right to licence them. So, for example, this post is a derivative work of the Wikipedia page linked to above and I have copyright in my original contributions because: They meet the threshold of originality I have permission to make the derivative either through the Wikipedia licence or because my use is fair use. I can give Stack Exchange a licence for my work but I cannot give them a licence for the original work including, for example, the image and quote above. So, someone could quote my entire answer subject to the licence or fair work, but they couldn't copy just the image or quote. | Yup, copyright statutes and case law cover these situations. In Canada, look at at Copyright Act Section 30.7: It is not an infringement of copyright to incidentally and not deliberately (a) include a work or other subject-matter in another work or other subject-matter; or (b) do any act in relation to a work or other subject-matter that is incidentally and not deliberately included in another work or other subject-matter. The US doesn't have this in statute, but some defendants used a fair use defence, some successful, some not. (http://www.iposgoode.ca/2010/04/cindy-incidentally-the-incidental-inclusion-exception-in-canadian-copyright-law/) If you're using a piece of art as part of a tutorial, or being illustrative of a point, or subject of commentary, review, or criticism, that may be fair use or fair dealing. | Factual assumptions ohwilleke's answer is entirely correct. However, it makes factual assumptions based on the standard meaning of "journal" and "author", which I believe to be unwarranted. From the question, it seems likely that we are talking about a scientific paper, which operates under a very different economic and legal model. I am going to assume that: the authors sent a draft of the paper, the preprint, to the journal editor; the journal editor sent the draft to external experts (the reviewers); those reviewers, and possibly the editor, gave some feedback; the authors modified their draft based on that feedback to produce the final version; throughout all this, the authors, editor and reviewers agreed with the journal’s policies; the journal policies require a transfer of copyright to the publisher, a legal entity that "owns" large number of journals and provides some technical services (article typesetting, maintenance of a web site with the journal contents, maintenance of DOIs, etc.); neither the authors, nor the editor, nor the reviewers received monetary compensation for their work (this is a key economic difference from non-academic journals, but as we shall see, it has little legal effect) In theory, all depends on the copyright release agreement When the author(s) submit a draft to a journal, they have to click through an agreement to release copyright. Such a clause could, in theory, be anything the authors and the publisher agreed that does not violate contract law. In practice, because the publishers are a small oligopoly, the agreements are more or less standardized. The "sample publishing agreement" given as example at https://www.elsevier.com/about/policies/copyright (as downloaded on March 2, 2023) is more or less representative: I hereby assign to the Copyright Owner the copyright in the manuscript identified above (where Crown Copyright is asserted, authors agree to grant an exclusive publishing and distribution license) and any tables, illustrations or other material submitted for publication as part of the manuscript (the “Article”). This assignment of rights means that I have granted to the Copyright Owner the exclusive right to publish and reproduce the Article, or any part of the Article, in print, electronic and all other media (whether now known or later developed), in any form, in all languages, throughout the world, for the full term of copyright, and the right to license others to do the same, effective when the Article is accepted for publication. This includes the right to enforce the rights granted hereunder against third parties. The authors are the sole intellectual contributors to the preprint version, but a copyright release agreement could still bar them from publishing it. The vast majority of agreements between novel authors and publishing houses forbid the author from selling the book rights to another publisher or posting drafts of the novel on the author’s website (two actions that would result in greatly diminished sales for the publisher). The published version incorporate revisions where the reviewers and possibly the editor contributed significant intellectual contributions. Again, all depends on the copyright agreement - the publisher terms could in theory require that the reviewers and editors release their contribution under an irrevocable license to the authors. In practice, all goes to the publisher. The financial structure is irrelevant The fact that authors (and reviewers, and editors) are not paid by the publisher is irrelevant. Yes, a contract (in common-law countries) requires consideration from both sides; however, consideration needs not be monetary. There is not much doubt that publication of an article is "consideration", at the very least because that is considered prestigious among a significant fraction of the population. In addition, there is ample evidence that funding agencies and university HR staff evaluate and promote scientists based primarily on the papers they publish in scientific journals. In practice, preprint rules are lax The vast majority of academic publishers allow authors to publish the preprint version although conditions vary (only the preprint, only on a personal website, only for a limited time, only after some embargo period, only if you cite the final article with the correct DOI, etc.). I would speculate that this is the result of cultural pressure. Many academics decided to post their articles (sometimes the preprint before sumbission, sometimes the published version) on the internet without much regard to pesky questions of copyright law, because they viewed publishers as gatekeeping greedy monopolistic parasites. The publishers decided to embrace the practice in order to be able to put some limits on it, rather than try to mass-fire lawsuits against the people who provided them with free labor. Regardless of whether that speculation is correct, the current arrangement is not the inevitable result of legal rules, and publishers could conceivably decide to change their preprint sharing policies at any moment. Limitations to the copyright of research papers This section is quite obviously not exhaustive, but given that the original question does not specify a jurisdiction, I did not search beyond what I already know. In the united-states, works produced by employees of the federal government as part of their work duties are generally public domain (17 U.S. Code § 105; do note that subsection (b) means certain works produced by certain institutions still are under copyright). Hence, if the authors were both researchers at a federal research institution, the preprint is public domain and can be republished irrespective of the publisher’s will. (I am led to believe, however, that most US researchers are not employees of the federal governments, but rather of private or state universities.) In europe, as a result of public pressure against publishers (see "greedy monopolistic parasites", above), the European Commission published non-binding guidelines (2012/417/EU) asking that there should be open access to publications resulting from publicly funded research as soon as possible, preferably immediately and in any case no later than 6 months after the date of publication, and 12 months for social sciences and humanities That (non-binding) recommendation has been adopted with varying adaptations in various EU countries. The exact implementation in a given country should be checked before relying on it. For instance, in France, article L533-4 du code de la Recherche allows authors (after the six or twelve months embargo period) to post the published version (not just the preprint), irrespective of what what signed with the publisher, as long as at least half of the funding for the research came from public funds. I will assume neither of those apply. The copyright owner is likely still around Academic journals are born and die regularly. However, academic publishers rarely do (Elsevier is almost 150 years old). As ohwilleke says, the copyright release contract signed 40 years ago is likely still valid; even if the publisher folded, it would apply to the publisher’s legal successor. (The question of how legal rights are liquidated in a bankruptcy would be an interesting question that I am not competent to answer; it is plausible that under certain circumstances the contract would be dissolved.) If the authors can access the copyright release they signed back when they submitted the article, you might be able to determine that posting the preprint or the final article is acceptable. (I realize that this is a fairly ludicrous hypothetical, given that the paper was published 40 years ago.) Otherwise, it is extremely likely that the publisher would be able to sue, even if the publication occurs with the authors’ full support. Whether they are likely to do so, and whether publishing anyway is ethical, are of course non-legal questions. | Yes Loss of income that is directly attributable to a loss of reputation can be part of the damages in a libel case. However, the plaintiff must prove the connection, must show that had the libel and the resulting loss of reputation not occurred, the income would have been received. This can be hard to establish. Testimony from specific people who say that they would have hired the plaintiff or done business with the plaintiff but for the libel is a common way to establish this kind of damage. Showing a sudden drop of income after the libel can also help such a case. And of course, the plaintiff must establish the other elements of libel: (in the US) a negative factual statement, communicated to others, the falsity of the statement, and a resulting loss of reputation. | Since the effective date of the US 1976 Copyright act, a copyright notice is not required at all on works published in the US, nor is it required on works published in any other country that adheres to the Berne Convention (which is adhered to by almsot every country in the world at this time). A copyright notice, if present, may specify a pseudonym, a business name, or a form of the author's name other than his or her legal name. The validity of the copyright does not depend on the name in the notice. This is true in all Berne Convention countries. Even under the 1909 US copyright law, when a notice was required for protection, the exact form of the name used was not important, and pseudonyms and variant forms were permitted, as well as DBA names, which might not be easy to associate with the actual copyright holder. Nor do I know of any other country in which an error in the name in the notice would invalidate the copyright. Aside from people changing names, a copyright can be sold or otherwise transferred. This does not require changing the copyright notice to reflect the changed ownership of the copyright, although it is often done with new versions or printings. The name on a copyright notice is at best suggestive or helpful; it does not define the owner. |
If I buy a stolen item from party A, and then party A spends the proceeds, who is entitled to the item? Is the original owner entitled to their property back while I am entitled to recover the sum paid for it from party A, or does the item somehow become rightfully mine, or... how does this all work? | The "original" owner remains the only legal one. Party A goes to jail. You get entitled to recover the money from A (unless you knew that the item was stolen — in which case the money will go to the government and you may go to jail with A). | Yes The child owns what they own - it would be illegal for the parent to take the item and dispose of it or otherwise permanently keep if from the child (once they became an adult). However, parents are their children’s legal guardians and are responsible for the raising of their children including matters of discipline. It is both legal and appropriate for a parent to limit access of a child to their possessions. | It isn't necessarily "illegal" (in the sense you are committing a crime) but you may be in violation of a verbal contract (which would fall under tort law). Let's take this a bit further. Perhaps Joe Schmoe gave you his debit card information so that you could make deposits for him and he said you could take $5 out for yourself for the trouble. This is a contract between you and Joe for a service. You can't extend Joe's offer to Jane Doe by saying "here is some debit card information, take $2.50 out for yourself". You have no right to extend your contract with Joe to somebody else. Now specifically for passwords it basically boils down to the same thing. Unless Joe gives you explicit permission to give that to somebody else, you can't just decide to unilaterally give what Joe gave you to somebody else. This may be different if Joe said "here, I'm buying you a subscription to service XYZ because you are a nice guy", this may be construed as a gift which transfers ownership. At that point you have control over what is or isn't done with the account. As another example let's say Joe let you borrow his car. You can't turn around and say to Jane, "here's a car you can use", Joe did not extend the offer to Jane, nor did Joe give you the right to extend the offer to another person. It's a moot point though, in the original context of this question, Netflix does restrict you from sharing your passwords "outside your household". Almost every paid service has some restriction against sharing with others. In the end Netflix may shut off Joe's account and Joe may sue you for damages, but you aren't going to be thrown in jail for this. This would be a civil case (tort) which you may be liable for monetary damages. | There are two very important points you should keep in mind here: You are not under any obligation whatsoever to investigate the owner of a vehicle parked on your property. You have full rights to tow any unauthorized vehicle off of your property. So, by far the easiest thing for you to do is to shift all responsibility off of yourself. Make it somebody else's problem. Try the police first. The safest thing you can do is simply dial 911 (or try to find a non-emergency number if you live in a major city, but Nebraska suggests just calling 911 directly) and report the abandoned vehicles to police. Their process for declaring a vehicle abandoned can take a bit longer (takes seven days in Nebraska). Essentially they'll document the vehicles' location and tag them, and probably run the license plates (if they come back stolen, they'll be towed by law enforcement immediately). Then they'll come back seven days later and, if the vehicles are still there, have them towed as abandoned vehicles. Law enforcement will sometimes only respond to private parking complaints that are actually on paved surfaces, and it sounds like these vehicles are just parked out in the middle of a field somewhere, so they may not actually care. But it doesn't hurt to check. If that fails, just have it towed. If law enforcement says it's ok or doesn't care about the vehicles, the next easiest thing for you to do is to call around to different tow companies, and see if one will tow it off your property for free in hopes of recovering tow costs and other fees from the actual owner of the vehicle, or through sale of the vehicle if it's never claimed. Let them do all the research and contact the owner, or report the vehicle to the police if necessary. You don't need to do any of the work yourself. Sure that doesn't get you any money, but any scenario that gets you money will be a very long process and it sounds like you just want the vehicles gone. You do not own the vehicles. The previous owner saying you bought the vehicles with the land is blatantly wrong. Ignore him, completely. By that logic, someone buying an apartment complex would subsequently take ownership of all vehicles on its private parking lot. That's not how vehicle ownership works in any state, and you do not own the vehicles, nor do you have any right to dispose of them. Even if the vehicle is abandoned, there is still a legal process that must be followed to claim ownership of an abandoned vehicle with the state. Unless you really want to take ownership of the vehicle, those processes are probably way more time and effort than you're willing to expend (usually resulting in years of waiting). Taking it to a scrap yard could be very bad for you. Since you do not have ownership of the vehicles, you definitely should not take them to a scrap yard. Destroying the vehicles without giving a person the chance to come claim the vehicles could get you into a lot of trouble. You're basically destroying someone else's property. If the person came back looking and found out you destroyed them, they may even be able to press charges against you, the scrap yard, or a combination of both (a Class IV felony in Nebraska, since vehicles are worth more than $1500). As an aside, any legitimate and reputable scrap yard should outright refuse to destroy the vehicles for you, because you won't be able to provide them with any documents that verify your ownership of the vehicles. Make sure you don't destroy the vehicles in any other way, though. Again, shift the responsibility. Don't put yourself into situations if you don't have to. Law enforcement and tow companies deal with this stuff every single day, and are much more qualified to handle this situation in a legal way than you are. Let them take all the responsibility off of you, and don't worry about doing anything yourself. It will make sure you don't do anything illegal, and thus don't open yourself up to repercussions later on down the line. | 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. | Is that extortion? false advertising? or in any way illegal? Not at all. The owner of the site is simply exercising his right as outlined in the terms and conditions from when the user signed up. And giving users an option for continued use of the site (that is, for him not to exercise a right of which they were always aware) does not constitute extortion. | The party that made the overpayment would have the right to sue you for "unjust enrichment" or "breach of contract" (since the terms of service no doubt provide or strongly imply that you are entitled to only one payment per sale), if you didn't voluntarily return the overpayment following a demand to do so, even though you received it through no fault of your own. Most of the core cases involve clerical errors in the bank account number used for a bank deposit. In general, there is a right to recover an accidental transfer of property to another, even in the absence of a clearly applicable contractual arrangement. As another example, if you were accidentally given a valuable coat at a coat check by accident and didn't notice it until later, the true owner would have a right to have it returned. The FTC regulation applies (as demonstrated by the link cited in the question) to intentional unsolicited deliveries of merchandise (which would always be tangible personal property by definition) to you through the mail. It does not apply to transfers of money, or to the accidental mis-delivery of property to the wrong person or the wrong address. The law in question is as follows: 39 U.S. Code § 3009 - Mailing of unordered merchandise (a) Except for (1) free samples clearly and conspicuously marked as such, and (2) merchandise mailed by a charitable organization soliciting contributions, the mailing of unordered merchandise or of communications prohibited by subsection (c) of this section constitutes an unfair method of competition and an unfair trade practice in violation of section 45(a)(1) of title 15. (b) Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. All such merchandise shall have attached to it a clear and conspicuous statement informing the recipient that he may treat the merchandise as a gift to him and has the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. (c) No mailer of any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, shall mail to any recipient of such merchandise a bill for such merchandise or any dunning communications. (d) For the purposes of this section, “unordered merchandise” means merchandise mailed without the prior expressed request or consent of the recipient. | 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. |
Why is it unlawful for an officer of the court to inform a jury they may find as they see fit, absolutely? Jury nullification may not be the worlds best know term, but it's certainly no stranger to this Stack. I'm curious how it comes about, and how it is legally justified, that an officer of the court is forbidden from telling a jury of a right that it has. I can imagine "populist" and "conservative" (small c) answers that it would create chaos, or throw the law into disrepute, or allow guilty parties to be free. I can well believe those are practical arguments to contemplate, but I'm still not convinced. When I think it through, these are some of my main concerns: The status quo is that a jury has absolute discretion to follow the law or substitute its own finding in lieu, without need to justify. But the court and its officers may not tell them they have that right. That's going to mean that some trials will have a jury informed of its discretion before retiring, and some won't. How is this justified as fair justice? We trust 12 individuals to decide whether they believe a matter is proven beyond reasonable doubt. Surely if so, we may also trust them to not misuse discretion either? (At most, add a suitable direction) Individuals informed of their right to ask a jury to nullify, must artificially fire their representative, then self-represent, to do so. It's artificial in that they don't wish to, but it's then only way to directly seek it of a jury or inform them or address the possibility. This is disruptive and contrary to the interests of justice. Also probably ineffectual as it doesn't stop anyone, just raises a mental barrier. Surely having a right as a defendant that may accrue to one's benefit, but be forbidden by national law or formal court processes as written, to have competent counsel mention or request it, with the express purpose that the jury shall be ignorant of their full rights in the matter of a verdict (and left with the incorrect belief that they have no discretion available), is in breach of human right to a fair trial? So... we trust a jury to rightly judge guilt - including capital guilt. But not to be even aware of discretion. And I'm left with the question at the start, as a result. | The "why" is pretty simple: the duty of the court is the ensure compliance with the law and uphold the rule of law. A statement to the contrary would undermine that obligation and would undermine a juror's oath to rule consistent with the law. But, out of institutional considerations, any rule that would make jury nullification impossible would also undermine other aspects of the jury trial that are designed to make a jury's determination of the facts of a case in a manner consistent with the law independently. And the oath of jury members to uphold the law is seen as adequate to secure the goal that juries uphold the law. One of the main points of a jury as an institution is to make random members of the general public who will never assemble together again and whose reasons aren't disclosed, rather than an identifiable individual who will continue to serve for decades and is identified with the government responsible for unpopular resolutions of particular criminal cases. If a judge could inquire about the reasons for a jury decision and punish them for making a decision for the wrong reasons, this appearance of independence and transfer of responsibility would be defeated. Another purpose of a jury trial system is to democratize the courts and to make a collective decision of the people at large look like one. But, even rare instances of jurors being disciplined for rendering a verdict in a manner that a judge grilled the jurors upon and found wanting would be problematic with respect to the cause of getting jurors (who already readily evade service) to serve. Therefore, continuing to keep in place the practices with respect to appellate review and the privacy of jury deliberations that makes jury nullification possible in fact, while not acknowledging this "loophole" in the system, is viewed as a suitable compromise. This isn't a breach of a human right to a fair trial because jury nullification is an extra-legal benefit to a criminal defendant to which they have not entitlement for the trial to be fair, and because governments don't have human rights. A jury nullification is in the same moral and human rights territory as an executive branch pardon. It can provide a safety valve that, because of the persons who are exercising it, we believe to be fairly safe from undue abuse, even though it does not implicate legal rights strictly construed. | 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. | 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. | Short Answer This account would be a fairly extreme outlier relative to normal practice in jury selection, but it is certainly something that could possibly happen (except for one small detail that isn't very relevant to the core issues that it raises; this detail is discussed below in the last heading of this answer). The substantive points made in the Facebook post about what the facts recounted say about the state of women's conditions and attitudes about women in our society, and the poster's skepticism that a judge who made decisions like these really acted appropriately, are well founded, fair, and appropriate to raise. These concerns are within the heartland of what the case law on these kinds of issues discusses and struggles with, although because of the procedural posture of this issue, there isn't a lot of case law on this issue. Long Answer My Sources Of Knowledge I have participated in choosing perhaps half a dozen juries in which I was counsel, and I have observed the process in other cases one or twice and have previously been in a couple of jury pools myself (I've never been actually selected to serve). I'm also familiar with accounts of others practitioners regarding their experiences with jury selection, I know what I was taught in law school about the process, and I am familiar with the academic and practitioner oriented literature about the process. I am answering based upon U.S. law, because I don't have intimate familiarity with petite jury selection in other common law countries, although the broad outlines of the process are similar. As a caveat to this answer, however, recognize that judges have very broad discretion in the jury selection process and that not all judges adhere to "best practices". Further, in many states, judges are partisan elected officials who tend to end up in there positions because of, rather than in spite of, their extreme views and positions of legal issues over which they have discretion relative to the average lawyer or judges in places where the judicial selection process is less partisan. Your Questions How often are jury members subject to separate examination by defense counsel (or prosecution counsel) during jury selection? This usually happens in any case more serious than a simple traffic offense. It would be unusual to examine every single member separately in a separate room, but normally quite a few jurors a questioned separately on one point or another. This process is called voir dire (a situation in which U.S. legal terminology borrows from French rather than Latin). How frequently are jury members dismissed in the presence of other members? Jury members are usually dismissed in the presence of other members, but the specific juror responses to the reasons for doing so may or may not be discussed in the presence of the other jurors. Less sensitive questions (e.g., do you still live in this county, are you a U.S. citizen, do you speak English, do you have scheduled health procedures during the anticipated trial or a trip with a non-refundable ticket or similar issue, and a few other "categorical" exclusions) are usually discussed in the presence of other members, as are responses to general questions that are unlikely to be grounds by themselves for a dismissal for cause, but could inform peremptory challeges of jurors. The better and more common practice is for sensitive questions, such as a previous incident of being assaulted, to be discussed out of earshot from the other panel members, but in the hearing of the judge, at least one lawyer for each side and the court reporter who includes the bench conference in the trial transcript. Alternatively, how often are dismissed jury members informed of the selection or elimination of fellow jury members? Normally, jury pool members leave the courtroom and get on with their day once they are dismissed. But, if they choose to stick around, they will learn who is selected to serve on the jury, and who is eliminated from the jury pool. Is the defense counsel able to eliminate (all twelve) jury members from consideration (for cause) without objections by prosecution counsel? Terminology First of all, here and in your prior questions it is important to distinguish between the jury pool (a group of randomly chosen people who might end up being jurors) and the jury (a group of people ultimately selected to decide a case after challenges for cause and peremptory challenges are complete). The Voir Dire Process There is, in principle, no limit on the number of members of the jury pool who can be dismissed for cause, and if they run out, everyone goes home for the day and comes back the next day with a supplemental batch of jury pool members. In an obscure civil case or minor low profile felony case, the jury pool would typically be 30-60 potential jurors. In a death penalty case or case that has famous parties (e.g. a civil case involving Taylor Swift held in Denver recently), the jury pool would typically be several hundred people and the first round of voir dire would happen over the course of several days or even weeks. Any time that either party requests that a juror be dismissed for cause, the other party can choose to not object, or can object and argue that the juror should not be dismissed for cause. The judge doesn't have to dismiss a juror even when both parties agree to strike the juror for cause and not infrequently will refuse to dismiss a juror even when both parties agree to strike a juror for cause. This is because the judge has an institutional incentive to discourage jurors other than the one that a party has moved to dismiss from the jury pool from giving a lame excuse to try to get out of jury duty, even if the parties, who don't have that institutional concern, don't care about that. Why Might A Prosecutor Fail To Object? The downside of objecting to a request to dismiss a juror for cause is that it creates an almost automatic appellate issue for the party seeking to dismiss the juror if the juror is not dismissed. So, a prosecutor might not object to a questionable request to dismiss a juror for cause in order to reduce the likelihood that a conviction obtained by the prosecutor would be reversed on appeal. Giving the defense the jury it wants also makes it more likely that if the case starts going badly that the defendant will agree to a plea bargain mid-trial rather than risking a conviction by the jury, because any conviction obtained is more likely to hold up on appeal. A defendant may appeal a ruling denying a motion to dismiss a prospective juror that is denied after a conviction, if any, is entered. If the jury acquits the defendant (the unfavorable outcome the prosecutor would like to avoid by not having a juror dismissed for cause), the prosecutor can't appeal the case, and if the jury hears evidence, the case can't be dismissed without prejudice or retried unless there is a conviction that is reversed or there is a mistrial (the mistrial rules are bit complicated). So, if the prosecutor was really appalled by the dismissal for cause of so many women and felt that this would impair the prosecution's chance of obtaining a conviction materially, the prosecutor would have to dismiss the criminal charges so as to vacate the trial, before evidence was presented to the jury, and then refile the charges (assuming that this would be possible consistent with statutes of limitation and speedy trial requirements). But, this would be an extraordinary move with high stakes, because the prosecutor has a long term strategic interest in not pissing off a judge in any case because that could cause the judge to exercise the judge's discretion against the prosecutor in future cases. The judge and prosecutor may have to deal with each other in future cases for decades and will do so on a regular basis every few weeks or months. A judge is likely to be pissed off in this situation because dismissing a case ready to go to trial and scheduled for trial with a jury fully selected because the prosecutor was unhappy with the judge's rulings on motions to dismiss jurors for cause would not be appreciated by the judge who naturally believes that the rulings made on those motions were sound even if that belief is unreasonable. I strongly suspect that this was the reason that the prosecutor allowed all twelve women in the jury panel to be stricken for cause in the case that you describe (assuming, of course, that the Facebook account is factually accurate, which is sometimes the case and sometimes not the case – even if the gist of the account was accurate, it wouldn't be surprising if some technical details or nuances were incorrectly recounted). It Would Not Be Normal For A Prosecutor To Not Object In This Case Despite these procedural considerations, it would be very unusual for a prosecutor to not object to striking all twelve women on a jury panel for cause in these circumstances and it would be very unusual for a judge to agree to strike all twelve women on the jury panel for cause in these circumstances whether or not the prosecutor objected. Generally speaking, merely having had a prior experience of having been assaulted would not be sufficient to strike a prospective juror for cause. Normally, the prosecutor and/or the judge would ask the prospective juror if this experience made it impossible for that particular juror to be impartial in this particular case, and normally most of the prospective jurors asked that question would say "no". Usually, in that situation, the judge would not agree to dismiss that prospective juror for cause. Most prosecutors would expect their objections to a request to dismiss a prospective juror for cause in this situation to be taken seriously by the judge and for only a few of these requests that cast the most doubt on the impartiality of a potential juror to be granted. And, most prosecutors would not consider the appellate risk involved in opposing a request to dismiss a prospective juror for cause in the typical scenario that I outlined above very troubling, because a judge has fairly broad discretion on dismissals of jurors for cause in the face of a marginal fact pattern. The fact that the judge allowed this also suggests that the prosecutor may know that the judge is very unenlightened and has misogynist leanings and that fighting the judge's ruling in this case would be a lost cause that is hard to appeal. (Of course, if any of the women had previously been assaulted by the defendant in this particular case and personally knew that defendant well, that would normally cause the potential juror to be dismissed for cause.) After Challenges For Cause Keep in mind also that after dismissals for cause are completed, a certain number of jurors equal to the number of peremptory challenges allowed to the prosecution and defense combined plus the number of jurors who need to be left over to decide the case would be put in the second stage of narrower jury pool. In this second stage, during which the narrower jury pool is honed to the actual final panel of jurors who will hear the case, each side exercises their allocated number of peremptory challenges (normally alternating back one forth, one juror at a time). While peremptory challenges can generally be made without good cause, you can not make a peremptory challenge solely based upon a potential juror's race or sex. If a side dismisses all women, or all men from the jury pool, there is a presumption that this is what was done by the party striking the jurors that must be overcome with convincing reasons not based on race or sex. The same analysis, strictly speaking, doesn't apply to motions to dismiss jurors for cause because in those cases a non-discriminatory reason has been definition been advanced by the party seeking to dismiss the prospective juror and accepted by the judge as convincing based upon the voir dire evidence. One reason not to fight very hard to dismiss a juror for cause is that many of those jurors who seem most favorably inclined to your case, although not necessarily all of them, are likely to end up being dismissed in a peremptory challenge in any case. A Footnote on Ex Parte Proceedings Ex Parte Voir Dire Is Improper The author of the OP also clarified that: When I asked, "How often are jury members subject to separate examination […]?", I meant that only one party (or counsel for one party) is examining the jury at a time. E.g., first the judge and prosecution counsel examines the jury (without defense present) then the judge and defense counsel examines the jury at some other time. Normally, the judge asks boilerplate routine questions first, then one side asks questions, then the other side asks questions. But, it would be almost unheard of (and it would be improper and unethical) for this to happen without lawyers for both sides present to see what transpires during the other side's questioning, even if the prosecution wasn't planning to make challenges for cause, so as to gather up information needed for the preemptory challenge phase of jury selection. To have a proceeding without both sides having a lawyer present is called an ex parte communication with the judge which both the judge and the lawyer doing so have an "ethical" duty to avoid in this part of the jury selection process. An ethical duty means that the judge could be, in theory, kicked of the bench or temporary suspended or public reprimanded or require to take a judicial ethics class for doing so; and that the lawyer could similarly be disbarred or suspended from the practice of law or publicly reprimanded or required to take a legal ethics class for doing so. Conducting the proceeding ex parte could also be grounds for a mistrial ruling that would not prevent the defendant from being retried (because it would have been done at the request of and for the benefit of the defense counsel), or for an appeal in the appropriate cases. (There are ex parte proceedings which are ethical and permitted such as applications for search warrants and arrest warrants, but juror selection is not a proceeding to which an exception to the general rule applies.) The Prosecution Could, In Theory, Waive The Right To Participate In principle, the prosecutor could waive the right to be present while the judge and defense lawyer examine prospective jurors, but this would be almost bizarre conduct that would only happen if someone was calling about an incredibly urgent development that threatened to shut down the courts or put the prosecutor or co-workers or family at immediate risk of physical harm happened. For example, a prosecutor might waive a right to be present if the prosecutor wasn't planning on objecting to any jurors for cause and was learning that the 9-11 attacks were underway, or that a mass shooting at the prosecutor's offices had happened or was in progress, or a prosecutor having a spouse who the person they stepped out to talk with was in a newly discovered hostage situation, or the prosecutor suddenly feeling an intense need to vomit or being on the verge of passing out or feeling like a heart attack might be in progress. Even then, however, it would be more common for a judge to call a recess for a little while in any of those circumstances. The Case Description Is Probably Incorrect Or Misleading On This Point The ex parte examination of prospective jurors, which was apparently described, would be so far outside the norm of typical jury selection conduct, that I suspect that this part of the account is inaccurate or was confusingly worded. For example, the post's wording arguably misleadingly implied that there was an ex parte proceeding as part of the jury selection process, but it wouldn't be necessarily inconsistent with a scenario in which a prosecutor was already present with the female jurors "before the remaining candidates were led into a room to meet the judge and defense attorney." For example, it could be that what really happened was that a member of the prosecutors office was introduced to the in the jury assembly room, and led the prospective jurors to the correct courtroom without making any comments to them, and then they met the judge and defense counsel, which would be entirely proper and not unusual. | They are not given independence from statute. This clause just says that conviction is not the end goal of the prosecutor. If in light of the evidence, the prosecutor comes to believe a person is not guilty, they are not to proceed with the prosecution. They must not hide exculpatory or mitigating evidence in order to get a conviction. | The Legal Answer: An officer's job is to turn over all evidence to the State's attorney and testify at trial truthfully. It is the State's attorney's job to turn over all evidence in discovery to the defense; to only prosecute people they believe are guilty or likely guilty; and to remedy clear and convincing false prosecutions as outlined in ABA rule 3.8 which is echoed in many state laws. Rule 3.8: The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;... ...(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;... ..(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. If this new exonerating evidence is turned over to the prosecutor they would be required to submit it to the defense and the trial would likely be postponed for both sides to evaluate the new evidence. If they suppress the evidence it would be grounds for appeal and disbarment of the prosecuting attorney. It is not the officer's job to direct the trial, just supply evidence that supports the truth. But it also wouldn't help if the State's own witness suddenly started offering testimony contrary to supporting guilt and in light of new evidence the prosecution may reevaluate to not have this happen. The Ethical Answer: Kind of sticky going into ethics and the exact right response to this situation, but it sounds like the answer you want. Assuming an ethical prosecutor the this would be the same as the legal answer. If this is not the case and the officer reasonably believes evidence will be suppressed, they could turn over evidence to both parties directly or to the prosecution and make the defense aware that he submitted evidence. He could also notify the state bar association of the suppression by the prosecution should that happen. Of course these actions may be at peril to their job as an officer despite whistle blower protections, but if ethics were easy, people wouldn't have to talk about them so much. | Technically anyone can sit on a jury. Lawyers are not automatically excluded from juries anymore, as being called for jury duty is a right and a duty that the law abhors automatically excluding people from. That is the official line on this. However, in reality, lawyers will always be stricken from serving by one of the lawyers trying the case. Each lawyer has a certain number of preemptory strikes (the ability to get rid of a juror for any reason, aside from those protected by law, such as race, religion, etc). They also have unlimited "for cause strikes," which are when a juror is biased in some way. Lawyers trying the case almost always try to use a cause strike to get a lawyer off, saying that they are biased toward either Defense or Plaintiffs based on the type of law they practice. The judge will usually not let them use a cause strike, saying that an attorney is ethical enough to apply the facts to the law and not sway the jury based on their personal biases that everyone has; plus, we're officers of the court so we have a duty to be ethical. Hence, they are typically forced to use a preemptory strike to get a lawyer off, but they will, every time. (If the lawyer just tried a similar case, then they'd get to use for cause.) The real reason that the lawyer from one side or the other definitely wants a lawyer off is that the jury instructions presented by each side to the judge are crafted in a way that each word carries specific meaning and, with that, is designed to lead to a certain way of thinking. Once the lawyers have fought over the instructions and the judge decides what will be presented, the jury only gets them in writing...in some states not even in writing, they only get them read to them without a copy to take back to the room. If a lawyer is in the jury, that person will undoubtedly be able to explain exactly what the law requires for a finding, or exactly why a certain finding should be had. They will advocate one way or another; this is undeniable. The instructions are purposefully confusing. The reason is this: when we fight over jury instruction, inherently, one of us will want an instruction that is hard to understand, for a lay person. This is because we want them to apply the law as it is commonly (mis)understood, not as it truly is, because that's not good for our case. To have a lawyer on the jury would defeat the finely crafted instruction and its potential to confuse. They would undoubtedly explain the instruction to the jury. One may think this would be helpful, however, juries are told that any special knowledge they have about anything pertaining to the case shall not be shared as it could sway the jury. This is most true when it comes to a lawyer sitting. When a jury doesn't understand a jury instruction, their only recourse is to send a question to the judge. In states where they have the instruction in writing, all he can say is "read carefully;" he cannot give his interpretation of what the instruction means. If a judge did give his own interpretation that is grounds for a mistrial or an appeal at least. A lawyer on the jury would be able to explain, "Oh, what this really means is X," and this is bad from one side's perspective, almost always. We all have biases, and even finely determined rules of law can be subtly pushed toward one direction or another with the use of a certain word over another, or the placement of one element before another. Generally, unless the side who would most want the attorney off had exhausted their preemptory strikes, and lost the argument to remove for cause, there is very little chance a lawyer will serve. The fact of the matter is that both sides are very likely to want a lawyer stricken from the jury pool, (even from the side who may believe the lawyer to have leanings in their favor). It is essential to control as many factors as possible in a jury trial, and an attorney on the panel is just a wild card. The potential always exists that if a lawyer ends up on the jury, they could explain the elements of the case to their fellow jurors, who may then not rely as fully upon the carefully crafted language in the instruction(s). This could backfire on either side when certain portions of the language used may be intentionally vague or difficult to parse though for someone who doesn't practice law. Anyone interested in the process of choosing and striking jurors (in the U.S.), through the process of voir dire, this is a fairly comprehensive article on the topic. | Is this normal? Pretty much. Witnesses lie in court all the time (in my experience, defendants, law enforcement officers and medical doctors are the most likely to lie). Dealing with a witness who lies in court under oath effectively is one of the most challenging tasks lawyers face. It is an inherently challenging hurdle to proving or defending a case. The facts as presented in court often differ in some material way from reality. It is a pretty tough thing to accurately measure, but my gut estimate would be that this happens in a least 30%-40% of cases that produce contested trials, although not infrequently, a judge or jury will not find the false testimony to be credible. On the other hand, it isn't at all uncommon (probably at least 10% of the time) for a judge or jury to believe the liars to be telling the truth, and to find the people who are telling the truth to be less credible. There is absolute immunity from civil liability for lying in court testimony, although it could, in theory, give rise to contempt of court sanctions from the judge in some circumstances, or to a prosecution for perjury. But, perjury prosecutions are, in practice, very rare, and a good share of them arise from false statements made in documents under oath, rather than from courtroom testimony. There is probably less than 1 perjury prosecution per 1000 provable lies made under oath in courtroom testimony on material issues that end up influencing the outcome in a case. I totally sympathize with how frustrating this situation is having been there in cases that I am litigating many, many times. But, in short, life isn't fair. |
Is calumny against the law in Ohio and in British Columbia, Canada? Calumny is technically the act of a person falsely accusing another person of a crime. However, the common definition of calumny means the act of maliciously (i.e. with the intent to do harm) misrepresenting someone's conduct to harm that person's reputation." Is calumny a crime to be charged by a State prosecutor? Is calumny an offense that can be the subject of a civil suit? What would be the relevant statutes in Ohio? in British Columbia? | In Ohio, and in most common-law jurisdictions, this conduct is covered under the tort of defamation. It is a common law tort rather than a statutory tort, so there is no statute to consult. Case law requires a defamation plaintiff to prove: that a false statement of fact was made; that the statement was defamatory; that the statement was published; that the plaintiff suffered injury as a proximate result of the publication; and that the defendant acted with the requisite degree of fault in publishing the statement. Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, ¶ 77. In the United States, defamation is very rarely going to be a criminal matter in and of itself. Because of the First Amendment's robust protections for free speech, defamation cases are generally doomed to failure, even when the speech in question is demonstrably false. In British Columbia, the elements should be roughly the same, but I don't have a sense of how often these claims are successful or whether there are criminal sanctions for defamation. | Not exactly, some actions that fall under "antisocial behaviour" are crimes in of themselves and they can be prosecuted in the normal manner (Of course where someone is prosecuted for those they're prosecuted for the specific crime not "antisocial behaviour") This doesn't mean however that doing anything that's not explicitly illegal leaves the Police powerless. In the Anti-social Behaviour, Crime and Policing Act 2014 there's a pretty broad definition of the term "antisocial behaviour": (a)conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, (b)conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises, or (c)conduct capable of causing housing-related nuisance or annoyance to any person. A constable can issue a Community Protection Notice (CPN) or the Police and select other organisations the option to apply for a civil injunction aimed at preventing the perpetrator(s) from continuing, the injunctions are ordered by Magistrates sitting in a civil capacity and the standard of proof is the civil one - i.e. "balance of probabilities" not "reasonable doubt". Violating a CPN can lead to a fine of between £100 and £2500 while violating such an injunction is considered Contempt of Court and while that still isn't a criminal offence can still see the guilty party land in jail for up to 2 years. | Jurisdiction: Ohio. What charges might this kid face? Let's deal with each individually. Possession of Child Pornography Based on the facts contained in your narrative, the suspect is guilty of possession of child pornography. Here is the relevant code statute. (2907.323 Illegal use of minor in nudity-oriented material or performance.) There might or might not be a problem with the admissibility of the evidence under the circumstances. This defect can be cured if the prosecution obtains a search warrant for the suspect's computer as possession alone meets the statutory threshold. Aggravated Robbery In Ohio, aggravated robbery is not a strict liability (i.e., statutory) crime. Therefore, mens rea (mental state) of the offender can be a legal defense. In this case, the suspect can argue duress as an exculpatory and/or mitigating factor. Here is the relevant code section. Murder As you pointed out in your narrative, the facts suggest the suspect killed in self-defense and, therefore, is not guilty of murder. | Generally, irrespective of charge, there is no 'shield laws' in the UK legal system. Any such provisions are a matter of discretion for the judge on the same grounds as the admissibility of evidence. Though the following case relates to a murder case rather than rape, it does provide justification for the lack of 'shield laws'. In R v Davis [2008] UKHL 36; [2008] 1 A.C. 1128 (henceforth Davies), as described in para 3, per Lord Bingham, the witnesses were subject to extensive protective measures, as 'they claimed to be in fear forth their lives if it became known that they had given evidence against the defendant'. [Tom Bingham, The Rule of Law (2011 Penguin) 99]. The case addresses issues at the time of the original hearing. However, more recently, there have been statutory provisions for anonymity of witnesses, specifically section 86 of the Coroners and Justice Act 2009. This enables witness anonymity orders to be made, however there are specific requirements that can be found in subsequent provisions of the Act, but there is no common or absolute protection of victims or witnesses. A closing note regarding the 'victim' in the rape case, it should be noted that in the UK legal system, as criminal cases are brought by the CPS on behalf of the Monarch, not the victim and as such the victim is, for all intents and purposes, a witness. | It's illegal if the intent is to deceive. Under S50(1) of the Police Act 1996: Any person who with intent to deceive impersonates a member of a police force or special constable, or makes any statement or does any act calculated falsely to suggest that he is such a member or constable, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. Their intent would need to be proven. It will be fact-specific; in some cases far easier to prove than in others. The criminal justice system is overburdened and underfunded so it is no surprise that these trolling videos are given no priority whatsoever. Further complicating the matter is the need to correctly identify the individual to prosecute. Doing so would require a fair amount of police time, time that could perhaps be spent on more urgent priorities given the relative lack of harm these videos are doing compared to more serious crimes. However, in this video (Would You Help a Police Officer Having An Asthma Attack?) an S50(2) offence would seem to have been committed by the actor wearing the police clothing: Any person who, not being a constable, wears any article of police uniform in circumstances where it gives him an appearance so nearly resembling that of a member of a police force as to be calculated to deceive shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. It does appear that both offences are being committed in these various videos, and the only reason people aren't being prosecuted is practical: there are more serious crimes to focus on, and the police would need to identify who exactly committed this crime--given these all happened at least two years ago, it would be challenging to say the least. They also seem to commit the separate crime of wasting police time, for example by approaching cops in the street and falsely confessing to crimes. Under S5(2) of the Criminal Law Act 1967, wasting police time is a criminal offence. Bringing proceedings in court requires the consent of the Director of Public Prosecutions (DPP) since those proceedings could have a chilling effect on the propensity of the public to report genuine matters to the police in the future. It is likely that while "wasteful employment" of police time was caused by these people, so committing the offence, it is likely viewed simply as "part and parcel" of the job and the officer likely didn't spend any time at all investigating the confessions (depending on their nature). Of course, even if the officer did spend time investigating the false confessions, the DPP would need to give their consent so unless the person has a demonstrated history of doing this (that would stand up in court) or the time wasted was of a particularly serious nature (e.g. the man who falsely claimed to be the Yorkshire Ripper), it seems unlikely consent would be granted. | However, can I ask the person provide me money in exchange that I am not going to call police? First of all, the conduct you describe is a tort, in addition to possibly being a crime, and so you could ask them to provide you with money in exchange for a release from tort liability (i.e. not suing them). This is done all of the time and is perfectly legal, although if one is afraid of extortion claims, the safer course would be to file the lawsuit first (and possibly also report the crime to the police first) and then to seek money damages. Once a criminal complaint has been filed and an accusation made publicly, there is no "extortion" element. A lawyer would not be permitted as a matter of professional ethics from proposing a settlement in exchange for not contacting the police, but could obtain money with a threat of civil liability. This is not obviously within the definition of extortion, because reporting them for committing an actual crime would not necessarily be "wrongful" conduct in every situation, and wrongful use of "fear" is one of the elements of the California crime for extortion. But, it is clearly within the definition of "fear" which is defined to mean: Fear, such as will constitute extortion, may be induced by a threat of any of the following: To do an unlawful injury to the person or property of the individual threatened or of a third person. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime. To expose, or to impute to him, her, or them a deformity, disgrace, or crime. To expose a secret affecting him, her, or them. To report his, her, or their immigration status or suspected immigration status. This definition makes no reference to the validity of the accusation. It might be possible to determine with more case law research when threatening to report a crime that they have committed is "wrongful use" of "fear". My expectation is that this is something of a gray area and may be quite fact specific (it is not a point upon which there is great uniformity between U.S. states). This excerpt from a California Supreme Court decision helps clarify the line between a legitimate threat and an extortionate one (case law citations and references omitted), and tends to suggest that insisting on money, hinging on a threat that the a criminal complaint will be made otherwise, does constitute extortion in the State of California, even when made by the victim in the case of a crime that was actually committed: Extortion “Extortion is the obtaining of property from another, with his consent ... induced by a wrongful use of force or fear....” (Pen.Code, § 518.) Fear, for purposes of extortion “may be induced by a threat, either: [¶] ... [¶] 2. To accuse the individual threatened ... of any crime; or, [¶] 3. To expose, or impute to him ... any deformity, disgrace or crime[.]” (Pen.Code, § 519.) “Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.” (Pen.Code, § 523.) Extortion has been characterized as a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal. “[I]n many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.” The extortion statutes “all adopted at the same time and relating to the same subject matter, clearly indicate that the legislature in denouncing the wrongful use of fear as a means of obtaining property from another had in mind threats to do the acts specified in section 519, the making of which for the purpose stated is declared to be a wrongful use of fear induced thereby.” “It is the means employed [to obtain the property of another] which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition. The law does not contemplate the use of criminal process as a means of collecting a debt.” In Beggs “we explained that because of the strong public policy militating against self-help by force or fear, courts will not recognize a good faith defense to the satisfaction of a debt when accomplished by the use of force or fear”; For purposes of extortion “[i]t is immaterial that the money which petitioner sought to obtain through threats may have been justly due him”; “The law of California was established in 1918 that belief that the victim owes a debt is not a defense to the crime of extortion”. Moreover, threats to do the acts that constitute extortion under Penal Code section 519 are extortionate whether or not the victim committed the crime or indiscretion upon which the threat is based and whether or not the person making the threat could have reported the victim to the authorities or arrested the victim. Furthermore, the crime with which the extortionist threatens his or her victim need not be a specific crime. “[T]he accusations need only be such as to put the intended victim of the extortion in fear of being accused of some crime. The more vague and general the terms of the accusation the better it would subserve the purpose of the accuser in magnifying the fears of his victim, and the better also it would serve to protect him in the event of the failure to accomplish his extortion and of a prosecution for his attempted crime.” Attorneys are not exempt from these principles in their professional conduct. Indeed, the Rules of Professional Conduct specifically prohibit attorneys from “threaten[ing] to present criminal, administration, or disciplinary charges to obtain an advantage in a civil dispute.” (Cal. Rules of Prof. Conduct, rule 5–100(A).) In Libarian v. State Bar we upheld disciplinary action against Librarian who, after losing at trial, sent a letter to opposing counsel, accusing his opponent's client of perjury and threatening to use the perjury charge as the basis of a new trial motion and a criminal complaint unless opposing counsel's client paid Librarian's client. “Although no action was taken either by Librarian or Siegel to prosecute Nadel, the record clearly shows conduct which is in violation of Librarian's oath and duties as an attorney. The threats contained in the letter indicate an attempt to commit extortion. The sending of a threatening letter with intent to extort money is ‘punishable in the same manner as if such money ... were actually obtained’ (Pen.Code, § 523) and the crime of extortion involves moral turpitude.” The conduct of an attorney who threatened an oil company with reporting adulteration of its gasoline to the prosecutor unless it paid his clients was not only grounds for disbarment but “constituted an attempt to extort money as said crime is defined in sections 518, 519 and 524 of the Penal Code”; attorney's suggestion in letter demanding $175,000 settlement in divorce case that he might advise his client to report husband to Internal Revenue Service and United States Custom Service constituted “veiled threats [that] exceeded the limits of respondent's representation of his client in the divorce action” and supported attorney's extortion conviction]. As these cases illustrate, a threat that constitutes criminal extortion is not cleansed of its illegality merely because it is laundered by transmission through the offices of an attorney. Bearing these principles in mind, we turn to the instant case. Flatley v. Mauro, 139 P.3d 2, 15–21 (Cal. 2006). | This is going to vary based on jurisdiction. In Wisconsin, the attempt statute covers all felonies, but it doesn't cover all misdemeanors. The statute says: Whoever attempts to commit a felony or a crime specified in s. 940.19, 940.195, 943.20, or 943.74 may be fined or imprisoned or both as provided under sub. (1g), 943.20 is in that list, and it just so happens to be the theft statute, which includes theft via fraud. So Eve is out of luck - her attempted theft is a crime, even if she doesn't try to steal the $2500.01 needed to trigger a felony. The penalty listed for attempts is half the sentence you'd get for the completed crime. But even if this wasn't covered by the attempt statute, once the police start investigating Eve, they'll likely find a victim, or some other crime to charge her with. People who do this sort of thing tend to have a pattern of doing this sort of thing. And I notice she's using the Internet to commit the crime; that means she's involved in systems affecting interstate commerce, and she may be breaking all manner of federal laws in addition to state laws. | Being misunderstood is not a crime. You could concoct scenarios where any number of statements could be a crime if interpreted unfairly. "I went to Georgia last weekend." "I choose to believe you mean the country instead of the state, and you don't have a passport, therefore you admitted that you went to a foreign country illegally!" The police would be free to investigate, but they wouldn't be able to get a warrant or arrest him based just on an ambiguous statement, let alone obtain a conviction. Of course, if the younger sister decided to accuse him, and the older sister decided to lie about having a relationship with him, that puts the statement in a whole other context - but if someone is falsely accusing you and someone else corroborates their story, you're probably in trouble no matter how exactly that came about. |
Can a family ask the government to hide the details of a relative's death? I know of a fictional story plot where the cause of someone's death is unknown. The death may be due to natural causes, or it could be murder. The government investigates, but the findings are hidden from the public due to a request made by the deceased's family. Is this legally feasible? If a person's death is investigated by the government, can family members of the deceased request that the results be hidden? And if it depends on the circumstances, under what circumstances is such permissible and not? In case it matters, this thread will assume Nebraska's jurisdiction. | One often has to show a family relationship or other legitimate grounds to access a death certificate even though it is a public record and I suspect that this is the case in Nebraska as well. But anyone who has access to a death certificate has access to all of it, including the cause of death. If the cause of death is initially undetermined, the coroner's office would have discretion about whether to update the death certificate as new information becomes available to the coroner, and a family member could make a personal appeal to the coroner not to exercise his discretion in this manner. But there is no legal grounds upon which a family would have a right to go to court to prevent a coroner from updating a death certificate on any grounds. Keep in mind also that cause of death on a death certificate isn't even a complete sentence worth of explanation and is in very medical/scientific terminology. Some government investigation reports are available for the public to see in an open records request under state law, but there is usually an exception for ongoing criminal investigations which is calculated to provide tactical benefit to the government in its efforts to catch criminals, rather than to preserve the feelings of the next of kin. There might be grounds for the next of kin to ask a court to redact a government investigation report which would otherwise be available to the public in an open records request, and to seal the unredacted copy, either because leaving it open could facilitate identity theft, or because the material revealed would appeal to the prurient interests of third-parties reading it without advancing a valid public interest (i.e. if it would be basically pornographic for many people requesting it). | We don't have a lot of details, but if you're in the United States, the answer is probably yes. There are rarely any meaningful rules of evidence in student misconduct cases, so pretty much anything can come in. There may be some small difference in the answer depending n whether you're dealing with a public university or private, but in either case, I can't think of any reason why they would not be able to introduce the evidence if they had it. If there's a question about its authenticity, I imagine that would just be up to the misconduct board to decide. If Person X says "Person Y sent this to me," and Person X seems credible, that's probably going to be enough. | In case there is no way of knowing, thus no way to sue, would this seem like a loophole that practically abolishes the 4th amendment ? The 4th amendment only means that the officer needs a probable cause/reasonable suspicion to detain you. It absolutely does not mean that he has to tell you what that is. In fact, not telling you what the probable cause is is often a part of the officer's job because, if you are indeed a perpetrator, letting you know what the suspicions are could make you do things that would allow you to escape justice. There is certainly always a way to sue i.e. file a lawsuit, for which you do not need to know what the probable cause was. Instead, you contend that there was not any. And from this point the officer has to tell the court what it was, if any. If he fails to provide one, you win and get redressed for harassment — this is how your 4th amendment rights work. If he does provide a good probable cause, you lose because in this case you either: actually did something suspicious and knew there was a probable cause; OR jumped to the conclusion that the officer harassed you when he was simply doing his job. | SCOTUS blog regularly does posts on that kind of topic (see, e.g., their Stat Pack) and if you looked at their sources or the authors of those posts, you could probably easily find more. There are people who do that and make their findings publicly available, but I don't know them off hand. | How much would I be expected to reveal if not directly connected to the case? For example, if I was asked, "What were you doing in the alley at night?," would you be required to reveal the information if it is potentially humiliating (e.g. you were having an affair) or illegal (e.g. you were getting illegal drugs)? The latter case seems to violate the protection against self-incrimination. Or what happens if you just lie about something inconsequential? You have to answer any permissible questions (i.e. consistent with the rules of evidence) asked. If you were doing something illegal you can claim the fifth and not testify unless you are given "transaction immunity" that your testimony will not be used against you in a criminal case against you. Usually perjury prosecutions require that the lie be about a material fact. Suppose you receive a death threat (either verbal or in writing) from the person charged with and who committed the crime. Something along the lines of: if you testify against me, then my friends will kill you after the trial. What legal options do you have? Tell the prosecutor on the case and ask the prosecutor to provide protection to you and to go after the people making the threat. The witness protection program was created for these cases. | Giving someone drugs without their knowledge or consent, say in food or drink, is a criminal act. At the least it is a form of assault, and possibly a more serious crime could be supported by the facts. Note that people's reactions to drugs vary, and serious harm or even death can result from drugs that do not have serious effects on most people. Very serious criminal charges might then result. The facts should be reported to the police. If this is a case where the people receiving the drugs know about them, and want them, that is a very different matter, although it may still be illegal depending on the nature of the drugs. Note that under US law, an uninvolved witness is not normally required to report a crime, although reporting is strongly encouraged. This rule is different in different countries. That is, in some countries an ordinary citizen may be legally required to report a crime. In at least one state any person is required to report a crime if a victim is in danger of bodily harm (Wisconsin statute 940.34) There may be similar provisions in the laws of other states. People with some sort of duty of care, or who are made "mandated reporters" by statute, such as teachers and health professionals, may be legally required to file reports when they know or have reason to believe that a crime is underway or has taken place. Such statutes vary from state to state, and will be different in non-US countries. | Generally speaking, if a person sends you an email you can publish it. Like if they call you a bunch of nasty names, or threaten you in some way, that information is yours and you can publish it. However, I'll give you three scenarios where you should not publish an email sent to you (and I'll edit to add more if they come up). Private facts. There is a tort called publication of private facts. A plaintiff must establish four elements to hold someone liable for publication of private facts: Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must "give publicity" to the fact or facts in question. Private Fact: The fact or facts disclosed must be private, and not generally known. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern. From Digital Media Law Project Note one thing - the offensive fact does not need to have been completely private for you to be liable, it must not have been generally known. In other words, someone like you who has a really low "public" bar needs to be careful. Also note that your buffer system might not help if the facts you publish are about someone other than the email sender; you are the one who published them. Stolen Information If someone sends you some intellectual property of a third party it is not yours to publish. Trade secrets, copyrighted works, prototype photos, etc. The sender might be breaking the law by sending the stuff to you but you're the one who published it so you can join as co-defendants. Barrett Brown was indicted for sharing a link to some stolen information. A link! He's in prison on other charges. Copyright held by the original sender (ht to @Dave_D) If the sender is the original author of the email, then the sender holds the copyright to the body of the email. Publishing the email violates the copyright. However, you could account for this in your buffer. Maybe. I am not sure is that is explicit enough. | Maybe, but probably not, although this would be a question of fact to resolve on a case by case basis under broad legal standards by a jury, and would also depend upon the state where it took place, and upon the nature of the employer of the paramedic. The hypothetical facts in this case are rich enough and ambiguous enough that the case could go either way depending upon how it was presented and what could be proven at trial. This is a case it would be good to take to a medical malpractice/personal injury lawyer in the jurisdiction where it happened to be evaluated. Usually a PI lawyer would not charge you for doing so or would ask for only a nominal fee. Additional factual investigation would probably also be necessary regarding some of the key facts identified below. It's complicated and there are multiple issues presented in this case where the law is not uniform from state to state. The general rule is that a medical professional has to carry out the delivery of medical care to a patient with the reasonable care that would be taken by a medical professional of that type. If the medical professional fails to take reasonable care, and that negligence failure to do so causes injury, then there is civil liability for medical malpractice. A threshold issue would be whether a medical professional-patient relationship was established. This would be a question of fact for a jury and would be a question upon which various potentially applicable state and federal laws would often not be uniform. On these facts, it could easily go either way. In federal court and in a majority of state courts (although there is variation from state to state) you need to know the name of the paramedic you dealt with who provided the bad advice to bring a successful lawsuit before suing. In a minority of states, you could sue first and get the name of the paramedic in discovery through the court process from the hospital after the lawsuit was commenced. The standard of reasonable care liability in this case would be judged by the standard of a reasonable paramedic, not a reasonable doctor. But, often states would have statutes that would limit the liability of paramedics in these situations to liability for gross negligence (which the facts in the question would probably not suffice to show), but not for ordinary negligence (which a jury could come out either way upon and which would hinge heavily on expert testimony). These tort reform type laws differ considerably from state to state. Whether or not particular conduct was negligent or grossly negligent, is a question ultimately decided by a jury under very broad and general legal standards after the fact in a trial, based largely upon expert testimony, on a case by case basis, unless the facts are unequivocally clear one way or the other, which is rarely the case. With my layman's level of knowledge about what a reasonable paramedic should be able to diagnose, I could see this determination going either way. Two cases with identical facts in front of the same judge in separate trials, in which juries are presented with exactly the same evidence could come out differently. The resolution of one case of the question of whether a particular act constituted negligence giving rise to liability is not binding as precedent and is not admissible as evidence in another case (subject to a narrow exception called "collateral estoppel" which applies when the same individual is sued by multiple people for the same conduct in different lawsuits that have resulted in final orders resolving key questions of fact that the lawsuits have in common). Many states would require that someone suing the paramedic have a medical professional certify that the paramedic's actions constituted legal negligence before the suit could go forward in a court. If there is a medical professional-patient relationship, and if the medical professional was found to have negligently caused injury, the medical professional's employer would have vicarious liability in some (but not all) states under a respondiat superior doctrine. Usually, the paramedic at an ER would be an employee of a private EMS ambulance company or a municipal fire department, and not of the hospital that runs the ER. But, some hospitals have their own in house paramedics. Also, some hospitals are run by for profit or nonprofit private companies, some are state or local governmental agencies, and some a federal government agencies. Usually only a small minority of the medical professionals in a hospital are employed by that hospital, and most of them merely have "privileges" to provide medical services for which they bill patients separately while working for their own professional corporation through which they are self-employed. Legally, the hospital itself is more like a hotel or a WeWork office space than to being a firm that directly provides medical services, although it isn't quite that black and white. Holding the ER directly responsible for failing to have good triage policies, as opposed to holding the paramedic responsible and assigning vicarious liability to the employer of the paramedic, would be very difficult, although not necessarily impossible if the ER had official policies that fell far below the standard of care for emergency room triage. It would be very uncommon for an ER to have bad policies of this type. Typically, ERs are only held directly liable for bad triage policies when, for example, they have a policy of not evaluating at all someone who does not have health insurance, which is a practice expressly prohibited by federal law. If the paramedic's employer was a government entity such as a fire department or a government owned hospital, the paramedic would be entitled to absolute immunity from civil liability under the doctrine of sovereign immunity, unless an exception applied. Usually there is an express exception to absolute immunity for medical malpractice liability by a medical doctor who has established a doctor-patient relationship with a patient, when the medical doctor is employed by a state or local government, usually there isn't when the doctor is employed by the federal government. But these laws differ from state to state in fine details that matter in a case like this one regarding whether the exception to immunity from liability is limited to medical doctors or applies also to paramedics. Causation would also be an important factual issue for trial. There is liability only to the extent that taking a non-negligent action could have prevented the harm. If you are infected with COVID, one common consequence is a stroke, and if someone had a stroke while infected with COVID, the case that taking them to the ER would have prevented the stroke from doing serious damage in the long run is weaker. On the other hand, guessing that a stroke was really something else, might or might not be reasonable. The injured person would also have to prove that the EMS response occurred at a time within the roughly 1-2 hours after the start of a stroke when it is possible to take medical action that could do something about a stroke. If the stroke had already happened an hour and a half later and it was rush hour and would have taken half an hour to get to the nearest hospital, causation might be absent and there would be no liability. There would be a legitimate question of fact over whether there was an actual diagnosis and treatment, or whether there was a refusal to get treatment. The reasonable care test is a balancing test. It takes into consideration not just the potential benefits of taking action, but also the cost that would be incurred if action was taken, and the downside risks of a proposed action. The paramedic's concerns about getting a COVID infection at the ER when the person responded to didn't appear to have it at the time would make the cost of a false positive diagnosis higher and would thus influence what would constitute reasonable care in this situation as the jury applies the relevant legal test. Liability would be evaluated based upon what the paramedic reasonable understood he was being told. This would be a question of fact for the jury. It is likely that different people who were present understood what was being said differently. Even if bystanders understood what was being said and meant, what matters is what the paramedic reasonably understood was being said and meant. Given the communication difficulties involved, that question could go either way. |
In the UK, does a person have the right to refuse a police "Stop and Search" UK Police's stop and search powers have been talked about a lot in the news in recent months. I would like to know if an individual has the right to refuse a stop and search by police in the UK. | england-and-wales No The primary stop and search powers are at: s.1 of the Police and Criminal Evidence Act s.23 of the Misuse of Drugs Act 1971 s.47 of the Firearms Act 1968 which all empower an officer to detain a person for the purposes of that search. Resisting a search may well be an offence under s.89(2) of the Police Act 1996: Any person who resists or wilfully obstructs a constable in the execution of his duty [...] shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale, or to both. | It is possible that there is such a booklet in some jurisdiction, and that local police are required to carry that booklet and show it to persons on demand. This link (apparently) publicly provides the police manual for the city of Seattle, except it is 5 years and a major lawsuit out of date. No provision seems to exist that requires showing authority to detain, when requested. There is no general requirement for all police and all laws, in the US, and the full set of state, county and city codes would be impractical to lug around. If required by law to carry and display some such document, then by law a person can demand to see a police officer's authority to detain. Even without such a law, you have a First Amendment right to challenge the detention, but that does not also enable you to resist arrest. A detention is not invalidated by the fact that the detainee is unsatisfied that the detention is legal. | Under Georgia v. Randolph, 547 U.S. 103 (2006) in such a case the police may not lawfully enter without a warrant, and if they do enter, any evidence found will not be admissible. The court in Georgia v. Randolph said: [N]othing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection. We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident. However, the police may talk to either or both occupants at the door, and this may provide sufficient reason to obtain a warrant. If police determine that someone in the residence is in danger, they can enter on that basis, and anything in plain view may be treated as evidence. Further consider Fernandez v. California, 571 U.S. ___ (2014) In that case one occupant of an apartment denied consent for police to enter. But the police had probable cause to arrest him, and did so. An hour later police returned and got consent from the other occupant, who may also have been a victim of domestic assault by the first occupant. The consent search was upheld, as the objector was no longer present (being then detained) when the police asked to search. So the holding about divided consent applies ONLY if the objector is physically present. If only one occupant is present, that occupant may consent to a search, even if the police know very well that the other lawful occupant would have objected. Interestingly, in Fernandez it appears that police had ample probable cause and could easily have secured a warrant, but chose to proceed on the basis of consent instead. | You can be under arrest before you are handcuffed and the police officially read you your rights. The problem from the citizen perspective is that there is no bright line test that tells you whether you are under arrest, and the courts can find that there was no arrest at a point where the suspect was handcuffed and confined to the back of a police car (United States v. Bullock, 632 F.3d 1004) – you can be merely "detained" for an investigatory stop while in cuffs. One test that might be used is asking if you are free to go about your business. A reasonable person could decide whether they were under arrest by the nature of what the officer says. For example, if he says "It would help us if you could stand over there" or "...if you could sit down", it is reasonable to conclude that this is an urging but not a command. On the other hand, if he says "Sit down, now!", it is unreasonable to think that that is a mere suggestion or plea, it is an order. There is no specific Arizona law that says when police can order you to do something, nor is there a specific law saying that force may only be used in such-and-such circumstance. There generally are guidelines for police conduct, and the guidelines tend to grant much leeway to officers (until it gets to be a recurring problem and the guidelines are changed). An example is Seattle, whose police manual reduces the question to the statement that "An officer shall use only the force reasonable, necessary, and proportionate to effectively bring an incident or person under control, while protecting the lives of the officer or others". But this does not say whether one must obey police orders. In Oregon v. Ruggles the court sympathetically notes that Whether a particular police order is “lawful” is frequently a complex question involving some of the most vexing and intractable issues in constitutional law. For example, a police order such as “Stop!” can be an unlawful seizure of a person under Article I, section 9, of the Oregon Constitution, depending on whether the order is accompanied by a sufficient show of authority and the officer who issues the order is subsequently found to have lacked reasonable suspicion to believe that criminal activity was afoot. But Oregon has a statute, ORS 162.247(1)(b), requiring you to obey a lawful order by police. The court found that you don't have to know whether the order is lawful. Arizona has a related statute, ARS 13-2508 where resisting is defined as intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest including the means of "Engaging in passive resistance" (which is "a nonviolent physical act or failure to act that is intended to impede, hinder or delay the effecting of an arrest"). Arizona law frames the resisting crime in terms of "effecting arrest", which is different from what Oregon law says: (a) Intentionally acts in a manner that prevents, or attempts to prevent, a peace officer or parole and probation officer from performing the lawful duties of the officer with regards to another person; or (b) Refuses to obey a lawful order by the peace officer or parole and probation officer. But even if an individual in Arizona is not chargeable with resisting arrest for failing to sit (because the officers were not effecting an arrest), that does not mean that police cannot order you to sit – it just means that it's not a separate crime to fail to comply. | Since you asked two questions: No and No Does a company’s T&C or their house rules supersede law No and is asking private health status (including the request to wear a mask) an offence? No A company cannot require you to do things that are against the law but they can require you to do things that go further than the legal minimum. The UK and Spanish governments do not require you to wear a mask but they do not prohibit private organisations (like airlines) for making it a requirement to access their facilities. The law requires that they make reasonable accommodation for people with disabilities. But you don’t have a disability, you just can’t sleep with a mask on. If you had a disability you would have no trouble in getting a letter from your doctor to that effect. The contract requires them to take you from the UK to Spain: they don’t have to enable you to sleep. If you read the T&C, you will find that they can refuse to carry you if, in their reasonable opinion, you pose a hazard to the aircraft or the people aboard it. | I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed. There are a couple of Freedom of Information requests to the government which state very clearly that it won't work: https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer: https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court. | Police can get a warrant, if the warrant is supported by "probable cause" to believe that evidence of a crime exists. A separate "probable cause" requirement is that to arrest a person, there must be "probable cause" that they committed a crime. However, the Privacy Protection Act makes it unlawful to search "work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication", unless there is probable cause that the person committed the crime in question. There are similar laws ("shield laws") at the state level. Here is a map which gives you an indication what immunities exist in what states. | I have not read the news report so cannot comment on the alleged offences and police conduct, but what I can say is that the information to given on arrest may be found at section 28 Police and Criminal Evidence Act 1984 (PACE): (1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest. (2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious. (3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest. (4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious. (5) Nothing in this section is to be taken to require a person to be informed— (a) that he is under arrest; or (b) of the ground for the arrest,if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given. Note the provisions at subsection (3) do not require anyone else to be told the grounds (reasons) at the time of arrest - including members of the public, protesters, bloggers or the press. Kerb-side debates can seriously or significantly distract the officer from ensuring e.g. public safety or preventing e.g. an escape from custody. Also, depending on what else is going on e.g. say in a dynamic and volatile crowd control or public order situation, the person under arrest does not need to told immediately if it would be impractical to do so. The operative phrase being as soon as is practicable, which is not defined by statute as each case needs to be considered individually according to its own set of circumstances. The relevant case law is DPP v Hawkins [1988] 1 WLR 1166, but the only detailed commentary I can find online is behind the PNLD paywall1. Succinctly, the magistrates initially dismissed the case against Hawkins for assaulting four police officers who kept him under arrest without giving the grounds as required by s.28(3) PACE. The DPP appealed, and the Court of Appeal sent the case back to the magistrates saying, inter alia, although there is an obligation under s.28(3) to tell a prisoner of the reason for his arrest as soon as possible (sic) after his arrest, a constable was also under an obligation to maintain that arrest until it was practicable to do so. 1Or free to law enforcement officers |
How can a court in the U.S. overcome eBay Inc. v. MercExchange, LLC and order mandatory injunction? Law* In Ebay Inc. v. Mercexchange, L.L.C., 547 U.S. 388, 126 S. Ct. 1837 (2006) (“EBay”), the Court restated that: “The traditional four-factor test applied by courts of equity when considering whether to award permanent injunctive relief to a prevailing plaintiff [] requir[ing] a plaintiff to demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. The decision to grant or deny such relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion. […] “[A] major departure from the long tradition of equity practice should not be lightly implied.” Weinberger v. Romero-Barcelo, 456 U. S. 305, 320. Nothing in the Act indicates such a departure.”” (bold type added).the public interest would not be disserved by a permanent injunction. The four-factor test has been repeatedly reaffirmed over the decades by the U.S. Supreme Court — no coincidence the above-mentioned tradition. (See: Cornel Law School on Permanent Injunctions: "There is a balancing test that courts typically employ in determining whether to issue an injunction. To seek a permanent injunction, the plaintiff must pass the [above] four-step test" (Weinberger v. Romero—Barcelo, 456 U.S. 305, 311–313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982); Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987)) Unlike in the UK, most, if not all, U.S. states provide no statutory injunction or similar remedy mandating that a victim of criminal theft (let alone civil conversions) be returned their property by anyone who may have gained possession or equitable ownership in good faith. For example, subdivision (c) of Section 496 of the California Penal Code on the criminal transfer and receipt of criminally obtained property and provides exclusively the following remedies for the victim of theft or other criminal dispossession and obtainment: “Any person who has been injured by a violation of subdivision (a) or (b) [of Section 496] may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees” The above provides no statutory injunction or even “indicate[ any] departure from the long tradition of equity practice [(which] should not be lightly implied[)]” (Ebay) leaving a mandatory injunction of the return of any stolen property outside of the realm of law declaring no such right to be asserted and exercised by the victim of theft and at the merits of the courts with jurisdiction in California to use equitable powers subject to, among other maxims, the traditional principles listed out in EBay. Facts Alice gets a violin stolen from her, an instrument she never learned to play; criminal prosecution ensues and results in the conviction of Bob who was the perpetrator of the theft. During depositions it is admitted and left undisputed that Charlie, in good faith, purchased the violin from Bob. Charlie learned to play on the violin, and now his sole income relies on it as he is unable to substitute the property by any means to make ends meet. Bob spent all the proceeds from the trade in the stolen property. Questions 1.a) Is there any states in the U.S. where stolen property is statutorily (and/or by case law) mandated to be returned to the legal owner from an equitable owner in the above scenario or in cases where the victims’ footings are more balanced? 1.b) Which are they? 2.a) Is there anything else whatsoever than the law (statutory or decisional) that Alice may plead to bind the court to issue a mandatory injunction ordering Charlie to return the violin to Alice if Alice is willing to forgo any and all damages in return of such injunctions? 2.b) If there is, how does it overcome Ebay? 3.) Which states, if any, in the U.S. punish the knowing possession of stolen property as opposed to punishing the knowing receipt thereof? *As understood at the time of the question. | 1.a) Is there any states in the U.S. where stolen property is statutorily (and/or by case law) mandated to be returned to the legal owner from an equitable owner in the above scenario or in cases where the victims’ footings are more balanced? Yes 1.b) Which are they? All of them. The relevant cause of action is the common law tort of detinue: The gist of an action in detinue is that the defendant is wrongfully in possession of personal property which belongs to the plaintiff ... In modern practice, detinue has been superseded almost entirely by statutory actions for the recovery of personal property. 2.a) Is there anything else whatsoever than the law (statutory or decisional) that Alice may plead to bind the court to issue a mandatory injunction ordering Charlie to return the violin to Alice if Alice is willing to forgo any and all damages in return of such injunctions? Alice is not seeking an injunction for the return of the violin; she is seeking a judgement ordering the return. An injunction is an interim order to preserve the status quo. She might seek an injunction that Charlie be restrained from using, damaging or disposing of the violin while the case is ongoing and that might be granted but one ordering the return where ownership is yet to be established would not. However, given that monetary damages are a suitable recompense for Alice's loss in this instance, the court might not issue an injunction. 2.b) If there is, how does it overcome Ebay? Ebay is not applicable to the final judgement. If the violin is found to be Alice's, the court will order its return (not an injunction). If Alice does seek an interim injunction, then Ebay will apply. Hence why I suggest that some types of injunctions might be granted and others will not. 3.) Which states, if any, in the U.S. punish the knowing possession of stolen property as opposed to punishing the knowing receipt thereof? None as far as I know. What is happening between Alice and Charlie is not a state punishment - it is the resolution of a civil dispute about ownership. Most states do have forfeiture laws that might allow them to confiscate the violin irrespective of if Alice succeeds in proving ownership but, again, that is not punishment of Charlie - his loss was at the hands of Bob, not the state or Alice. | Short Answer Does a secured loan create obligations beyond the collateral assets? The vast majority of the time it does. Long Answer The default rule is that security interests in assets other than real property is a recourse debt under the Uniform Commercial Code (UCC) (a model statute that individual states can enact voluntarily) and the applicable common law (which is uniform almost everyplace except Louisiana and Puerto Rico). This means that deficiency judgments are allowed if the seized collateral is insufficient to pay the loan in full. It also means that the lender can sue on the debt without foreclosing the collateral at all if the lender wishes to do so. A note and security agreement can be made expressly "non-recourse" which limits recovery to seizure of the collateral and precludes a suit on the debt itself. A secured loan can also become non-recourse if the unsecured debt is discharged in bankruptcy, or if the deadline for filing a claim expires in a probate case. Neither bankruptcy nor the probate claims process extinguish the rights of a secured creditor in the collateral, even if the right to bring a suit on the debt itself is terminated. Special tax rules (that, in substance, disallow tax losses with no economic effect) apply to non-recourse debts (especially the special case of limited liability companies which are taxed as general partnerships but subject to special non-recourse debt rules). When filing a claim in bankruptcy, if the collateral is worth less than the debt, two claims must be filed. One secured claim in an amount equal to the value of the collateral and a second unsecured claim in the amount by which the debt exceeds the value of the collateral. In the case of secured debts in real property, most states mirror the personal property rule (which is very close to Uniform since every state, territory and district in the U.S. had adopted Article 9 of the Uniform Commercial Code governing security interests in property other than real estate). But in a few states (including California), security interests in owner occupied residential real estate (a.k.a. mortgages, liens, encumbrances, or deeds of trust) are truly, or in practice are, effectively non-recourse. Be aware also that there are a handful of isolated, mostly state specific but some federal exceptions. The most pertinent federal exception is for swap agreements and certain other kinds of derivatives (exceptions which are found primarily in the bankruptcy code) involving setoffs. There is a section of the Uniform Commercial Code Article 9 involving "strict settlements" that rarely applies except in pawn arrangements. There are also a number of statutory liens (mostly perfected by possession of the collateral rather than by a UCC-1 financing statement) that create a security interest in collateral by operation of law without a signed security agreement that are sometimes non-recourse (e.g. auto mechanic's liens in selected states). | Why does someone need to know? Supreme Court decisions are effective to all cases at trial or on direct appeal when decided, so long as the issue it resolves are raised in the trial court. Judges generally don't suspend cases because a case that could change the law is pending. If the decision comes out shortly after the trial, the judge can overturn the result in a post-trial motion. If the decision comes out later, the issue can be raised on appeal. A smart plaintiff raises favorable issues that could be decided in his or her favor in pending appellate cases to leave the door open for that possibility. If the law is unsettled, the judge makes a best guess about how the higher courts will resolve it and is effectively free to choose either outcome knowing that the result is uncertain. If there is binding precedent on an issue at the time, the judge must follow it, even if there is a likelihood that it could be reversed on appeal. People are presumed to know the law, but it's not possible to know what future decisions the Supreme Court of the USA will make. Therefore, the existing written precedents should be relied upon in their present form, and the case at trial should continue without delay. This kind of consideration is mostly relevant only in cases of "qualified immunity" and in certain kinds of federal habeas corpus petitions (which collaterally attack criminal convictions affirmed on direct appeal). In those cases, law enforcement conduct is not punished, and judicial decisions are not overturned, unless there was clearly established law at the time the decision was made that made the law enforcement conduct unconstitutional, or make the judicial decision a wrongly decided one. In all other contexts, what was believed to be the law at the time an action was taken, or a judicial decision was made, doesn't matter. | UPDATE: There is now a definitive answer. There Is No Binding Judicial Precedent Adjudicating The Key Standing Issues Raised That Are Factually Squarely On Point This is a novel argument. To my knowledge, this is the first time that any state has ever sought judicial relief arising from another state's election administration, so it is a case of first impression not directly governed by a factually similar precedent. Thus, rather than being governed by a precedent that resolved the exact standing question presented, we must result to more general principles. Because it is a novel argument, it is impossible to be completely sure how it will be resolved. General Considerations In Standing Law The General Rule Standing requirements require that there be a particularized actual injury to a legally recognized interest of the person suing. Standing is a subcomponent of subject matter jurisdiction. Standing is one of the things that must be present for a court to have subject matter jurisdiction. Standing is evaluated with reference to the merits. It exists if there is a recognized legal theory which, if proven, there has been a particularized injury to the person bringing the claim. Most standing cases involve legal claims for relief that it is clear that someone validly has and the question is whether this particular person can assert them. But a minority of standing cases involve the question of whether there is a recognized legal claim of the type asserted at all. No one has standing to assert a non-justiciable claim (i.e. a claim beyond the jurisdiction of all courts), or a claim for relief for which the courts do not legally recognize a remedy (e.g. a claim for not being chosen by a particular person to marry). As a result, standing can overlap with the argument that someone has failed to state a claim upon which relief can be granted. Generalized Grievances Don't Impart Standing Even if the law is perfectly clear that a law has been violated, that doesn't necessarily mean that anyone has standing to seek a remedy from a court for that violation of the law. To the extent that one has merely a generalized grievance shared in common with everyone (e.g. an interest in a correct outcome of a Presidential election, or a desire to have the government follow the law) that would not ordinarily suffice to establish standing. Texas does not have an interest in the outcome of a Pennsylvania or Georgia Presidential election that is any different from the interest of a citizen of Texas or me, a citizen of Colorado. But citizens of a state other than the one in which the election was conducted who aren't candidates in that election clearly don't have standing to challenge the outcome of an election in another state. If the Texas argument for standing is accepted, any voter in any state would have standing the contest the election results of every other state in every Presidential election (although not in the original jurisdiction of the U.S. Supreme Court). The Argument For Standing Offered By Texas And Its Flaws The Texas Argument For Standing The Complaint argues for standing as follows in paragraph 18: In a presidential election, “the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.” Anderson, 460 U.S. at 795. The constitutional failures of Defendant States injure Plaintiff States because “‘the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.’” Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (Bush II). In other words, Plaintiff State is acting to protect the interests of its respective citizens in the fair and constitutional conduct of elections used to appoint presidential electors. The Bush v. Gore Precedent Doesn't Establish Standing Here But Bush v. Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (Bush II) relied upon in the Complaint is not on point. Indeed, Reynolds v. Sims (which established a one man, one vote principle for state and local legislative redistricting) expressly recognized that the federal constitution would be illegal if a parallel system like the electoral college or U.S. Senate were enacted at the state level, but declined to hold that the 14th Amendment invalidated this portion of the U.S. Constitution (in part, because a valid constitutional amendments can't alter the equal representation of a U.S. state in the U.S. Senate without its consent). Bush v. Gore likewise was an intrastate election dispute alleging that the equal protection rights of voters in one part of a state were abridged by the voters in another part of the state having different election rules applied to them in a lawsuit between two candidates in the race who clearly did have standing (although not original jurisdiction standing in the U.S. Supreme Court, which is limited with other exceptions inapplicable here, to lawsuits between two states). The Claim That Texas Has A Legally Cognizable And Justiciable Interest In The Overall Result Of A Presidential Election Is Unprecedented And Dubious The Complaint's assertion that in a presidential election, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States, citing Anderson, is also problematic. First of all isn't technically true. The United States has 51 elections for Presidential electors, it doesn't have a "Presidential election" of ordinary voters. Perhaps an elector has standing to assert vote dilution, but an elector voting in that election, or a candidate, but they are not U.S. states and as a result, they can't bring lawsuits in the U.S. Supreme Court's constitutional original jurisdiction. In the same way, Texas can't sue Florida alleging that a U.S. Senate or U.S. House election in Florida was conducted incorrectly, because every U.S. Senate or U.S. House election impacts which party has a majority in that house of Congress. Instead, the Constitution, recognizing that the courts offered no national judicial election remedy to people outside a state with a disputed election, created a legislative one by vesting resolution of disputed Congressional elections in Congress, rather than the Courts. Hundreds of disputed Congressional elections have been adjudicated that way. Indeed, the only case of a genuinely disputed Presidential election outcome, the election of 1876, which is the closest precedent, is one in which Congress, rather than the Courts resolved the dispute regarding the overall Presidential election result based upon allegations of irregularities in a particular state. One of the leading U.S. Supreme Court bar members concurs with this analysis: Texas has no legal right to claim that officials elsewhere didn't follow the rules set by their own legislatures. The United States doesn't have a national election for president. It has a series of state elections, and one state has no legal standing to challenge how another state conducts its elections any more than Texas could challenge how Georgia elects its senators, legal experts said. "This case is hopeless. Texas has no right to bring a lawsuit over election procedures in other states," said SCOTUSblog publisher Tom Goldstein, a Washington, D.C., lawyer who argues frequently before the court. Second of all, it is irrelevant. Anderson didn't authorize one state to sue another state over its administration of an election. Even if the outcome of elections in other states have a de facto impact on other states, this doesn't mean that Texas has a legally cognizable interest in how another state selects its electors which is reserved to the legislature of the other state under the constitution. There are no precedents for one state having a legally recognized interest in the outcome of another state's election. It did not participate in the election as a voter or an administrator of that election or as a candidate. It doesn't even cast a vote for President in any case, the electors that it elected do that. The votes of the Texas electors are not diluted by the existence of electors in other states beyond the status quo expectation with no wrongdoing. Texas gets the same number of electoral votes relative to the total number of votes cast, regardless of who the electors of four other states cast their votes supporting. There is no allegation that another state got too many electoral votes. In contrast, Texas might have standing to sue if it was allocated just 12 electoral votes, when, the census results showed that it was actually entitled to 38 electoral votes. Being denied the right to cast the full number of electoral votes that Texas gets to cast probably is an actual injury and does not hinge on how another state administers its election of its Presidential electors. Links to the briefs filed by each of the four defendant states found here further detail the standing analysis in addition to other arguments. For example, Michigan summarizes its standing argument as follows: Texas lacks standing to bring its Electors Clause claim where its asserted injury is nothing more than a generalized grievance that the Clause was violated. The standing section in the Georgia brief explains that: Texas lacks Article III standing to pursue its claims. Texas alleges two types of injuries—a direct injury to the State and a supposed injury to its Electors, whom Texas seeks to represent in a parens patriae capacity. Neither is cognizable. A. Texas argues that it has suffered a direct injury because “the States have a distinct interest in who is elected Vice President and thus who can cast the tiebreaking vote in the Senate.” Mot. for TRO 14–15 (emphasis in original); see also id. at 15 (arguing that a “Plaintiff State suffers an Article III injury when another State violates federal law to affect the outcome of a presidential election”). Under governing precedent, that is not an injury in fact. A State—like any plaintiff—has standing only if it alleges an injury that is actual or imminent, concrete, and particularized. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560); see also id. (injury in fact is the “[f]irst and foremost” of the standing elements) (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 103 (1998)). But Texas has no cognizable interest specific to Texas in how the Vice President votes. Texas’s interest is in its own representation in the Senate; Georgia has not impaired that interest. Texas still has two Senators, and those Senators may represent Texas’s interests however they choose. Even by its own logic, Texas has suffered no injury. In any event, Texas’s speculation that the Vice President may one day cast a tie-breaking vote is not a cognizable injury. . . . Indeed, certain Vice Presidents—Mr. Biden, for example—never cast a tie-breaking vote during their tenure. Texas’s alleged injury is not the type of imminent, concrete, or particularized injury that Article III demands. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013) (a “threatened injury must be certainly impending to constitute injury in fact” (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))); id. (standing theory that “relies on a highly attenuated chain of possibilities[] does not satisfy the requirement that threatened injury must be certainly impending”). Texas’s alleged injury is also not cognizable because it is a generalized grievance—the kind of injury “that is ‘plainly undifferentiated and common to all members of the public.’” Lance v. Coffman, 549 U.S. 437, 440– 41 (2007) (quoting United States v. Richardson, 418 U.S. 166, 176–77 (1974)); id. (The only injury plaintiffs allege is that the law—specifically the Elections Clause—has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.”); see also Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018) (the alleged injury must be “distinct from a ‘generally available grievance about government’” (quoting Lance, 549 U.S. at 439)). The injuries that Texas alleges on behalf of its citizens are injuries that would be common to not only every citizen of Texas, but also every citizen of every state. Cf. Lance, 549 U.S. at 440 (“To have standing . . . a plaintiff must have more than a general interest common to all members of the public.” (quoting Ex parte Levitt, 302 U.S. 633, 633 (1962))). And in all events, by Texas’s logic any State would have standing to pursue the alleged claims because every State purportedly “suffers an Article III injury when another State violates federal law to affect the outcome of a presidential election” (Mot. for TRO 15). So Texas’s injury is specific neither to its citizens nor to Texas as a State. An injury unique to no one is not an injury in fact. Texas cites no case supporting its assertion that it has suffered an injury in fact. Texas cites Massachusetts v. Envtl. Prot. Agency for the proposition that “states seeking to protect their sovereign interests are ‘entitled to special solicitude in our standing analysis’” (Mot. for TRO 15 (citing 549 U.S. 497, 520 (2007)), but Texas strips that language of its context. The Court there explained that Massachusetts was entitled to “special solicitude” in the standing analysis because a State has a quasi-sovereign interest in “preserv[ing] its sovereign territory” and because Congress had afforded “a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Massachusetts, 549 U.S. at 519–20; see also Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 182 (D.C. Cir. 2019) (explaining context of the Court’s reasoning). Neither thing is true here. In any case, Massachusetts involved a State’s loss of coastal property from rising sea levels, which is nothing like Texas’s alleged injury (a speculative tie-breaking vote by the Vice President). Texas has not alleged a direct injury in fact. B. Nor does Texas have standing to raise claims for its electors in a parens patriae capacity (cf. Mot. for TRO 15). A State may sue parens patriae only if it proves that it has Article III standing (see, e.g., Bernhardt, 923 F.3d at 178), which Texas hasn’t done. But even if it had, Texas would lack parens patriae standing because that concept applies only when a State seeks to vindicate the interests of more than a discrete and identifiable subset of its citizens (most often in the health and welfare contexts). See, e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982) (“[M]ore must be alleged than injury to an identifiable group of individual residents . . .”); Pennsylvania v. New Jersey, 426 U.S. at 665 (a State may not sue parens patriae when it is “merely litigating as a volunteer the personal claims of its citizens”). Here, Texas purports to represent the interests of only thirty-eight people (its Electors). But Texas’s problems run even deeper. This Court has explained that “[o]ne helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue as parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers.” Alfred L. Snapp & Son, 458 U.S. at 607; see also Bernhardt, 923 F.3d at 178 (same). That is not the case here. Under our federalist system, Texas could never “address through its sovereign lawmaking powers” how another State elects its Electors. Texas lacks parens patriae standing. C. Texas also lacks standing because it asserts the rights of third parties. A plaintiff generally “cannot rest his claim to relief on the legal rights or interests of third parties” unless the plaintiff establishes (1) a “close” relationship with the third party and (2) a “hindrance” preventing the third party from asserting her own rights. Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004). Otherwise, the plaintiff fails to present a “particularized” injury. See Spokeo, 136 S. Ct. at 1548; see also Warth v. Seldin, 422 U.S. 490, 502 (1975) (“Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.”). . . . The Eleventh Amendment bars Texas citizens from bringing such claims against Georgia in federal court, so Texas cannot circumvent that bar when asserting such individual rights in a parens patria capacity. See Georgia v. Pennsylvania R. Co., 324 U.S. 439, 465 (1945) (“By reason of the Eleventh Amendment the derivative or attenuated injuries of that sort are not enough for standing. See, e.g., Hollingsworth v. Perry, 570 U.S. 693, 708 (2013) (“It is, however, a ‘fundamental restriction on our authority’ that ‘[i]n the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.’” (quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)). The Pennsylvania opposition brief's section on standing explains that: Article III, Section 2 of the United States Constitution limits the jurisdiction of the federal courts to resolving “cases” and “controversies.” U.S. CONST. art. III, § 2; Raines v. Byrd, 521 U.S. 811, 818 (1997). That same jurisdictional limitation applies to actions sought to be commenced in the Court’s original jurisdiction. Maryland v. Louisiana, 451 U.S. 725, 735-36 (1981). To establish standing, the demanding party must establish a “triad of injury in fact, causation, and redressability.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 103 (1998). More specifically, that the plaintiff has suffered injury to a legally protected interest, which injury is “fairly traceable to the challenged action and redressable by a favorable ruling.” AIRC, 576 U.S. at 800; see also Maryland, 451 U.S. at 736. This Court has “always insisted on strict compliance with this jurisdictional standing requirement.” Raines, 521 U.S. at 819. For invocation of the Court’s original jurisdiction, this burden is even greater: “[t]he threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.” People of the State of N.Y. v. New Jersey, 256 U.S. 296, 309 (1921). Texas fails to carry this heavy burden. First, Texas cannot establish it suffered an injury in fact. An injury in fact requires a plaintiff to show the “invasion of a legally protected interest”; that the injury is both “concrete and particularized”; and that the injury is “actual or imminent, not conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). According to Texas, the alleged violations of Pennsylvania’s Election Code undermined the authority granted to the Pennsylvania General Assembly under the Electors Clause.8 Motion at 3, 10-11, 13-15. But as the text of the Electors Clause itself makes clear, the injury caused by the alleged usurpation of the General Assembly’s constitutional authority belongs to that institution. AIRC, 576 U.S. at 800 (legislature claimed that it was stripped of its responsibility for redistricting vested in it by the Elections Clause). The State of Texas is not the Pennsylvania General Assembly. See Virginia House of Delegates v. Bethune-Hill, __ U.S. __, 139 S.Ct. 1945, 1953 (2019) (noting the “mismatch between the body seeking to litigate [the Virginia House of Delegates] and the body to which the relevant constitutional provision allegedly assigned exclusive redistricting authority [the General Assembly]”). Second, Texas’s claimed injury is not fairly traceable to a violation of the Electors Clause. As discussed above, each of Texas’s allegations of violations of Pennsylvania law has been rejected by state and federal courts. Third, Texas fares no better in relying on parens patriae for standing. It is settled law that “a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” Pennsylvania, 426 U.S. at 665. The state, thus, must “articulate an interest apart from the interests of particular private parties.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Baez, 458 U.S. 592, 607 (1982). In other words, “the State must be more than a nominal party.” Ibid. That, however, is exactly what Texas is here. Texas seeks to “assert parens patriae standing for [its] citizens who are Presidential Electors.” Motion at 15. Even if, as Texas claims, the presidential electors its citizens have selected suffered a purported injury akin to the personal injury allegedly sustained by the 20-legislator bloc in Coleman v. Miller, 307 U.S. 433, 438 (1939), which they did not, that does not somehow metastasize into a claim by the state rather than those presidential electors. The 20-person bloc of legislatures in Coleman sued in their own right without the involvement of the State of Kansas. Ibid. Texas has no sovereign or quasi-sovereign interest at stake. It is a nominal party, at best. 8 In its motion, Texas disclaims a “voting-rights injury as a State” based on either the Equal Protection or Due Process Clauses. Motion at 14. Rather, Texas claims that its legally protected interest arises from “the structure of the Constitution” creating a federalist system of government. Ibid. As discussed infra, to the extent Texas relies on the Equal Protection and Due Process Clauses, those “Clauses protect people, not States.” Pennsylvania, 426 U.S. at 665. Wisconsin's standing arguments are as follows: At a minimum, to invoke this Court’s original jurisdiction, Texas must demonstrate that it has “suffered a wrong through the action of the other State.” Maryland v. Louisiana, 451 U.S. 725, 735–36 (1981). But Texas is unable to allege that Wisconsin itself did anything to directly injure Texas’s sovereign interests. Instead, Texas advances a far more attenuated theory of injury—that the other States’ supposed violations of their elections laws “debased the votes of citizens” in Texas. Mot. for P/I at 3. This speculative logic is not nearly enough to carry Texas’s burden to prove, by “clear and convincing evidence,” a “threatened invasion of [its] rights” “of serious magnitude,” New York, 256 U.S. at 309. Indeed, Texas’s allegations fall far short of what would be required by Article III in any federal case—that is, a showing that a plaintiff has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant[s], and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). It is well settled under the Court’s original jurisdiction cases that “a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.” Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976). Apart from attempting to rely on the “personal claims of its citizens” as electors or voters, Texas struggles to identify any traditional sovereign injury to support its claim under the Electors Clause. Instead, Texas proposes that this Court recognize a new “form of voting-rights injury”—an injury premised on the denial of “‘equal suffrage in the Senate’” somehow caused by the election of the Vice President. Mot. for Prelim. Inj. at 14 (quoting U.S.Const. art. V, cl. 3). Texas makes no freestanding constitutional claim to this effect. In any event, this argument makes no sense. Texas does not (and cannot) argue that it now has fewer Senators than any other state. By definition, therefore, it maintains “equal suffrage in the Senate.” Texas’s attempt to garner standing for its claims under the Equal Protection and Due Process Clauses fares no better. These “Clauses protect people, not States.” Pennsylvania, 426 U.S. at 665. If Texas’s theory of injury were accepted, it would be too easy to reframe virtually any election or voting rights dispute as implicating injuries to a States and thereby invoke this Court’s original jurisdiction. New York or California could sue Texas or Alabama in this Court over their felon-disenfranchisement policies. . . . . This case does not satisfy the direct-injury requirement. Texas speculates that Wisconsin’s facilitation of mail-in voting during the pandemic may have increased the likelihood that third parties would engage in instances of voter fraud in Wisconsin. Texas does not offer a shred of evidence that any such fraud occurred. And Texas does not allege that Wisconsin directed or authorized any individual to engage in voter fraud. Nor would any such allegation be plausible. In any event, this Court long made clear that its original jurisdiction does not extend to “political disputes between states arising out of [the alleged] maladministration of state laws by officials to the injury of citizens of another state.” Stephen M. Shapiro, et al, Supreme Court Practice 10-6 (11th ed. 2019); see Louisiana v. Texas, 176 U.S. 1, 15 (1900)) (“Jurisdiction over controversies of that sort does not embrace the determination of political questions, and, where no controversy exists between states, it is not for this Court to restrain the governor of a state in the discharge of his executive functions in a matter lawfully confided to his discretion and judgment.”). It is hard to imagine a case that more clearly runs afoul of that principle than a dispute over the outcome of the presidential election, premised on the alleged maladministration of state election law. The Existence Of A Legally Cognizable Interest Needs To Be Evaluated In The Context Of The U.S. Constitution As A Whole The question of first impression concerning whether a state has a legally cognizable interest in the administration of an election in another state needs to be evaluated in the context of the U.S. Constitution as a whole. The Constitution says a fair amount about election administration and disputed elections that in context disfavors the notion that one state has a legally cognizable interest in how another state administers an election administration. All federal elections in the United States (outside the District of Columbia) are administered by the states and by the local governments and agencies created by the states. State election laws must conform to federal requirements, and candidates participating in elections or voters in that state have standing in many cases to litigate whether those state and federal laws were conformed to by state election administrators. Each election of electors is separate and prior to 1852, Presidential elections weren't even held on the same day even though the Congress had the authority to mandate a single Presidential election date. The process of determining a total outcome of the election by aggregating state electoral college votes is vested in Congress by the constitution, not in the judicial branch, and so there can be no legally cognizable interest in this non-justiciable issue. Therefore, not only does Texas lack standing to bring this suit on the theory asserted that Texas is injured by an aggregation of electoral votes including votes allegedly made by improperly certified electors. No one has standing to do so in any court of law. | The Supreme Court does not handle hypotheticals. The court has interpreted Article III Section 2 Clause 1 of the Constitution, the Case or Controversy Clause as a limit on the powers of the judicial branch. The courts have jurisdiction over various types of cases and controversies but only those listed in the Constitution. This limits courts to hearing actual cases and prevents them from issuing advisory opinions. Additionally, in order to bring a case, the plaintiff must have standing to bring the suit. You can't sue the government just because you don't like a law (well, you can, your suit will just be dismissed because it lacks standing). You have to show That you have been, or will imminently be, injured (injury-in-fact) That there is a direct correlation between that injury and the law (causation) And that a favorable court decision will redress the injury (redressability) As a practical matter, the courts are already overwhelmed by the number of actual cases that come up and the Supreme Court can only hear a tiny fraction of the cases they are asked to hear. If they added the ability to hear hypothetical cases as well, the court could easily be overwhelmed by Senators and Representatives asking them to weigh in on every remotely controversial bill or amendment before Congress or interest groups bringing cases for speculative grievances. | Short answer: Maybe. Long answer: The answer here varies from jurisdiction to jurisdiction. Normally, the process goes like this: The application for the warrant is usually made under seal or otherwise in secret to prevent the target from trying to hide evidence. So before it's been executed, you can pretty much forget about accessing it. After the warrant is executed, though, there are differing answers to this question. The Supreme Court gave us a test for this kind of question in Press-Enterprise II, which held that the First Amendment gives us a qualified right to access court proceedings and records. The right applies when public access makes sense using the "experience and logic" test: Has the Anglo-Saxon experience typically been to provide access, and does logic tell us that access has beneficial effects for the judicial process? But lower courts have disagreed about how to apply the test. The Eighth Circuit allowed access to warrants in a defense-industry corruption investigation in In re Search Warrant for Secretarial Area-Gunn, but the Ninth Circuit denied access in to warrants in the same investigation in Times Mirror Co. v. U.S. I think, though, that the Ninth Circuit decision would have come out differently if the investigation had already ended. Just to mix things up further, the Fourth Circuit has also allowed access, but based on common law principles of access, rather than the First Amendment. That was Baltimore Sun Co. v. Goetz. Same in the Second Circuit: In re Application of Newsday, Inc. Individual states also have their own rules, but those are of course subject to limits under the First Amendment. When I wanted a copy of a warrant, I would go first to the clerk of the court whose judge signed the warrant. I would tell them what I was looking for, and I pretty much always got it. I would rarely submit a FOIA request, especially if the warrant was issued by a federal agency. Those requests sit in a queue for months or years without being reviewed, and the agency virtually always denies the request anyway. When law enforcement agencies and courts have copies of the same record, you're almost always going to have better luck getting access from the courts, which are set to open by default. If the court denies the request, try again after there's an indictment, and again after the trial. | The title asks about double jeopardy, but the the body seems to be asking about statute of limitations, which is a separate issue. If an argument regarding timeliness is made by John, it likely will not be based on a statute of limitations. If Jane is asking for a restraining order, she will have to show a high likelihood of harm. If further actions have occurred recently, then any statute of limitations would not apply. If four years have gone by without any further actions by John, then Jane is unlikely to convince a judge that harm is imminent. Restraining orders are not supposed to be punitive, but preventative, thus the concept of statutes of limitations generally does not apply; as they are supposed to be used to prevent imminent harm, only the current situation is considered. Long-past actions are relevant only as to interpretation of current facts. One does not get a restraining order "for" violent acts done against one; one gets a restraining order to prevent future acts, and uses previous violent acts as evidence of the likelihood of those acts. Asking a court to protect oneself from someone who has not been in one's life for four years is unlikely to go over well. | I make a copy of any important receipt printed on thermal paper, since the terms of many sellers and manufacturers require receipts for disputes. But I'm not aware of any law that says they have to make it convenient to maintain a receipt or other proof of purchase. However, when a company makes their terms unclear, unexpected, or difficult to comply with it seems there is often a lawyer ready to step up and file a class action lawsuit. Here's one archive to give you an idea of what companies will settle. In the United States the FTC is also empowered by law to "protect consumers," which means that if "disappearing" receipts become a widespread problem for consumers they could take action on the government's authority: The Federal Trade Commission Act is the primary statute of the Commission. Under this Act, the Commission is empowered, among other things, to (a) prevent unfair methods of competition, and unfair or deceptive acts or practices in or affecting commerce; (b) seek monetary redress and other relief for conduct injurious to consumers; (c) prescribe trade regulation rules defining with specificity acts or practices that are unfair or deceptive, and establishing requirements designed to prevent such acts or practices; (d) conduct investigations relating to the organization, business, practices, and management of entities engaged in commerce; and (e) make reports and legislative recommendations to Congress. Given the above, I wouldn't be surprised to see either a class-action lawsuit or FTC rule that requires retailers to provide "durable" receipts, or some convenient substitute. |
Do Texas municipalities have to go to small claims court to collect on their civil fines? From this answer in a related question I'm told, This makes parking violations under municipal ordinances civil offenses punishable by civil fines imposed in administrative hearings before a "hearing officer" (i.e. a parking court judge). Failure to attend the hearing confesses liability but is not otherwise wrongful. An unpaid fine is enforced by a lawsuit rather than a criminal charge. When it is said that an unpaid parking ticket is "enforced by a lawsuit", does that mean (because the damages would be small) that the lawsuit would be forced to small claims court? I assume they can't clog district court with $100 citations. | Texas law on parking offenses is Ch. 682 of the Transportation code. After you work through the sections on creating ordinances and having a hearing, we get to enforcement in §682.010 – you have been ordered, at the hearing, to pay a fine. Enforcement can be by (1) impounding the vehicle if the offender has committed three or more vehicle parking or stopping offenses in a calendar year; (2) placing a device on the vehicle that prohibits movement of the motor vehicle; (3) imposing an additional fine if the original fine is not paid within a specified time; (4) denying issuance of or revoking a parking or operating permit, as applicable; or (5) filing an action to collect the fine, cost, or fee in a court of competent jurisdiction. (b) An action to collect a fine, cost, or fee under Subsection (a)(5) must be brought: (1) in the name of the municipality served by the hearing officer; and (2) in a county in which all or part of that municipality is located. The first 4 options do not require further legal process, they just do it (small claims court cannot order seizure of a vehicle). To get money from you, they have to go to court, and it can be any court in that county. The Houston ordinance does not add anything beyond saying what kind of parking is forbidden and what the fine is. Texas law doesn't go beyond saying "court of competent jurisdiction". Small claims court functions to make a basic legal determination that a party owes money, but that determination has already been made in the case of a traffic fine. Enforcement would be obtained through justice court. | Civil law instead of criminal law Not all things that we commonly refer to as "illegal" are actually crimes - many of them refer to violations of contracts or other obligations where the harmed party may (or may not) use the civil system to obtain some satisfaction, but the government and prosecutors will not do it for them. In general (with some exceptions, depends on jurisdiction and circumstances), most low scale copyright violations are treated as a civil matter - it allows the harmed party (i.e. the copyright owner) to sue you for damages in a civil court, if they wish and are able to do so. However, it generally is not a crime (again, with some exceptions - e.g. large scale distribution often is) so the government and police on their own cannot, should not and does not investigate and prosecute violations of software licence terms. | This (as always) depends on jurisdiction, but usually - No, just taking the money is not legal.. In most jurisdictions, if you have a claim (the rent, in your case) against a debtor , and the debtor does not pay, you are not allowed to take any enforcement action (taking property, coercing the debtor) yourself. Instead, you must obtain a court or administrative judgement confirming your claim. Even then, often only a court officer or the police may actually enforce payment of the debt. This is mostly to protect the debtor from unwarranted enforcement action (such as taking more than you are owed, or collecting a disputed debt). For example, in Germany, to enforce a debt the creditor must first obtain what is called a Vollstreckungstitel or just Titel (title) - an official document confirming that there is an outstanding claim. This is on top of any contracts already existing. A Titel is obtained either through a regular court judgment, or through an abbreviated, administrative process called Mahnverfahren (essentially, you ask the court to send the debtor a letter about your claim, and if the debtor does not file an objection, you get the Titel). Once you have a Titel, the creditor can enforce it any time they choose (with a Titel, the statute of limiation is extended from the usual three years to 30 years). However, actual enforcement must be performed by an officer of the court (Gerichtsvollzieher). Only they may do things such as collecting the debtors property, force open doors and even imprison uncooperative debtors. I don't know the exact situation in the USA, but I believe it is roughly similar. For example, the equivalent of a Vollstreckungstitel is a Writ of execution. | What is going to happen, could I get fined, placed in jail etc? Your summons should have explained the specific violation you're being charged with, and you could look up the relevant sections of the law. Assault is defined in Chapter 12 of the New Jersey Code of Criminal Justice. There are several types, and again, your summons should explain which one you are being charged with. My guess is it will probably be "simple assault", paragraph (a) (right at the beginning). This is defined as a "disorderly persons offense". Upon conviction, a disorderly persons offense is punishable in New Jersey by a term of up to 90 days in jail and probation, (section 2C:43-2 (b) (2)), and a fine of up to $1000 (section 2C:43-3 (c)). This represents the maximum. I do not know what kind of sentence is actually likely. It could depend on common practice in the state, the prosecutor's opinion of the severity of the crime, and the judge's discretion. A lawyer would be best qualified to help you find out how to contest the charge, or to receive a lesser sentence if convicted. | Hit and run, with no injury, is subject to Vehicle Code 20002. A person who fails to stop and notify has committed a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. The description of the crime is that The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. Moving the vehicle in accordance with this subdivision does not affect the question of fault. The scary language of the statute notwithstanding, one element of the crime is missing, namely knowingly doing so. The corresponding jury instruction incorporates the full law including caselaw requirements, in particular To prove that the defendant is guilty of this crime, the People must prove that: While driving, the defendant was involved in a vehicle accident; The accident caused damage to someone else’s property; The defendant knew that (he/she) had been involved in an accident that caused property damage [or knew from the nature of the accident that it was probable that property had been damaged]; AND The defendant willfully failed to perform one or more of the following duties: (a) To immediately stop at the scene of the accident; OR (b) To immediately provide the owner or person in control of the damaged property with (his/her) name and current residence address [and the name and address of the owner of the vehicle the defendant was driving] This means you either need to learn how to defend yourself in court against an experienced lawyer (if you didn't know this aspect of the law, you probably shouldn't assume you can carry off this defense), you give in and plead guilty and take your chances, or you hire an attorney. Just saying "I didn't know" is not good enough, so lawyer up. | Bankruptcy does not obliterate legal financial obligations (taxes that you owe, fines, etc.). Fines either do or do not (any more) accrue interest, depending on jurisdiction. Fines for criminal conviction can accrue interest. By law, no fine can be unreasonable, but there is no simple determination of what is reasonable versus unreasonable. The matter reduces to whether the penalty would be grossly disproportionate to the gravity of the offense. Federal law suggests a upper-ballpark of $250,000 for an individual felony or $5,000 for an infraction, but there is no actual upper limit, for example a crime resulting in pecuniary gain may receive a fine of twice that gain, so fines can be in the hundreds of billions of dollars. The government can seize property including wages in order to satisfy a legal financial obligation. However, you can not be imprisoned because of an unpaid fine, although you can be imprisoned for willfully not paying a fine when ordered to do so (there is no legal clarity as to what constitutes "willful" non-payment). As noted in this article, seemingly small fines can balloon to large sums (they cite an example of a 4-fold increase in initial fine owing to interest and similar increases. | In a civil rights action in which someone prevails (which is by no means certain in this case, but not impossible either), there is at a minimum an award of nominal damages (i.e. $1) and the reasonable attorney fees and litigation costs incurred in the lawsuit. A jury could also award a prevailing party non-economic damages, and/or exemplary damages (a.k.a punitive damages) in connection with a violation of civil rights. There might also be injunctive or declaratory relief stating that this was a violation of civil rights and requiring the government to adopt practices to prevent harm going forward. It is hard to see how there would be any economic damages at issue in this case, but it isn't impossible to imagine some circumstances in which they could be proven, perhaps. | I don't know the situation in L.A., but most courthouses I've dealt with will allow you to just pay the fine online and be done with it. Try their website or call the clerk's office to get more information. |
Can you contest a parking citation in Houston and get a jury trial? I've always wondered aside from a "hearing" to contest a citation, as described here is there any way to get an actual Jury Trial for a parking citation? There is a mention of an appeal if you're "dissatisfied with the hearing officer's decision". This appeal is done at the Municipal Court, but it doesn't say whether or not this appeal means your entitled to a jury trial. If I really want a jury trial on a parking ticket, can I get one in Houston? If so, how? | Traffic offenses, which are generally class C misdemeanors in Texas, and more generally, pretty much any offense for which you are required to appear in person at the court in Texas (which can result in issuance of a warrant for your arrest if you fail to appear) will generally be subject to the right to trial by jury in Texas. Note that this is not a U.S. constitutional requirement unless one can be incarcerated for six months or more for the offense, so, in all other cases, the right to a jury trial in traffic cases is a right that arises solely under the State of Texas Constitution and by state statute and state court rules. But, generally speaking, a parking violation in Texas in punishable with an administrative citation for which only a small fine is authorized, in which there is no right to a jury trial. See, e.g., this regulation governing parking violations on the property of the state capitol in Austin. More pertinent to the question, in particular, this also appears to be the case in the City of Houston (see also here). This process is governed by Texas Transportation Code §§ 682.001 to 682.011. This makes parking violations under municipal ordinances civil offenses punishable by civil fines imposed in administrative hearings before a "hearing officer" (i.e. a parking court judge). Failure to attend the hearing confesses liability but is not otherwise wrongful. An unpaid fine is enforced by a lawsuit rather than a criminal charge. The U.S. Constitution's 7th Amendment does not confer a right to a trial by jury in civil matters which is strictly a function of state law. And, while the Texas Right to a Jury Trial under Article 1, Section 15 of the Texas Constitution is very broad, it does not include reviews of administrative decisions, which are what parking hearings and appeals of them to a municipal court are classified as being. | An officer is allowed to pull you over for speeding and then decline to give you a ticket for speeding. So the lack of a ticket has nothing to do with it (unless you actually weren't speeding, not even 1 MPH over.) Simply having past felonies, however, is not a reason for an officer to be able to search the car. Without a warrant, he'd need probable cause, consent, or some other exception to the warrant requirement. It's impossible for me to say what happened here. Maybe your husband had an outstanding arrest warrant? Maybe the officer saw the gun from outside the car? Maybe one of you said "OK" when he asked to search the car? Or maybe the search was illegal after all? | is it worth the money to have a lawyer and see if they could help me get this ticket off my record? No. It is not worth the money and, absent very unusual circumstances, a lawyer is unlikely to be meaningfully more successful than dealing directly with the prosecutor in the case. Your best, cost effective option is to contact the prosecutor's office to see if you could plea bargain it to a lesser charge (which is often possible, for example, by taking a driver's education course). The main collateral disadvantage of a speeding ticket on your record is points on your driving record, which if there are enough of them, result in the temporary suspension of your driver's license, but those points expire after a few years. | Contempt of court is still a remedy, because fines can be issued. The mayor or chief of police can still be arrested and held (enforcement would be via the county court bailiff or sheriff, for example), and the city can be fined. It is possible but not normal to arrest government personnel for disobeying a court order. | 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. | The district court judge, as reported in this news story has held that there was probable cause to arrest Daniel Robbins in this case, and that his rights were not violated. If this ruling stands, officers acted legally, although they might still be required to return the phone with the images. Whether there is probable cause for an arrest (or a search) is always a very fact-based issue. I have not found the judge's actual decision, only a news summary of it, which can often be misleading. Specific facts about exactly what Robbins did or said may be important in determining whether there was in fact probable cause. It appears that Robbins intends to appeal this decision. If he does there may be an opinion from a Circuit Court of Appeals expanding on whether there was probable cause or any violation of rights, and why. Previous cases have established that normally there is no reasonable expectation of privacy for acts performed in public; that one my photograph or video record such public acts legally from anywhere that one may legally be; that there is a right photograph or record police officers engaged in official actions or the use of police powers; and that laws attempting to forbid such recording are unconstitutional when so applied. However, it seems from the news story that here the police officers were off-duty and not engaging in any official acts or use of police powers. That might change the ruling. I rather expect the district court's decision to be overturned, but there is no case exact;ly on point that i know of, and one can never be absolutely sure what a court will do in a particular case. I can see why police officers may have felt threatened, and why the Judge may have been inclined to sympathize with them, although I think the decision was incorrect. But a Judge of the Appeals Court might possibly feel the same way. Until the Appeals Court rules, one cannot be sure what the law in this matter will finally be. (It is possibly, but statistically a bit unlikely, there there will eventually be a ruling from the US Supreme Court on this case.) This article from Nolo Press discusses the issue of recording police, primarily in the context of police who are performing their official duties. It says: Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).) The Nolo article goes on to discuss whether a Section 1983 Federal suit against police officers who arrest someone recording their actions will succeed, indicating that this will depend on the specific facts of the case. The Nolo article mentions that one is not allowed to interfere with an officer during process of recording. What exactly constitutes "interference" is not fully clear, and will depend on the facts of a specific case. The Nolo article mentions other circumstances when recording an officer may not be legal. | It happens all of the time, even though it is mildly improper. Usually, the lawyer can get away with it until the judge sternly warns the lawyer not to try it again, in which case the lawyer risks being held in contempt of court. This is riskier for a prosecutor (who risks this conduct causing a conviction to be overturned on appeal resulting in a new trial), than for a criminal defense attorney. This is because an acquittal, if obtained by these methods, is still not subject to appeal. Indeed, for a criminal defense attorney, even if it results in a mistrial followed by a new trial (which can be allowed if the mistrial is caused by the conduct of the defense), the mistrial will often count as a win if the trial was going badly on the merits. | You will still have to pay A ticket can be ammended if the state so chooses (they can look up what color and model your car is). The car is probably on video. The officer can testify if they wrote your car info down somewhere else. And if they identified you inside the car as the violator, the car's color hardly matters. The idea that minor mistakes or omissions on tickets can get you off is a myth. From an actual lawyer |
Why is a W-9 Required Before the Executor Will Send an Inheritance Check? I am under the impression that there is no (U.S.) federal income tax. See, for example, the beginning of the second paragraph under Understanding Inheritance Taxes in https://www.investopedia.com/terms/i/inheritancetax.asp If that is true, then why are beneficiaries being required to fill out a W-9 form before the executor sends will send an inheritance check? Is this standard practice in the U.S.? Someone I know has been required to do this even though the amount of the distribution is not extraordinarily large---somewhere between $20,000 and $25,000? | The tax in question that is a concern is probably not an estate tax due in connection with an inheritance tax, it is probably the federal income tax that applies to the beneficiary in some way. Typically, if there is a specific devise (e.g. I hereby leave you my nephew $10,000) that is distributed more than one year after the date of death, part of the inheritance is taxable interest income to the recipient. Another circumstance in which an inheritance could generate reportable taxable income is if the inheritance is of "income in respect of a decedent" (e.g. retirement account distributions, or a final paycheck). More generally, if the estate had taxable income in excess of $100 as determined in IRS Form 1041 (e.g. due to the sale of capital assets that have appreciated after the date of death, rental income, dividends, or interest received), this estate income is allocated to the beneficiaries of the estate receiving distributions and flows through to them as a result of the "distributable net income deduction" of the estate, and has to be reported on Schedule K-1 from the estate with the beneficiary's Social Security numbers. So, there are multiple reasons why a W-9 might be required in connection with an inheritance. | Are the monetary donations collected by the recipient subject to federal taxation according to IRS law? Yes. Usually, money received from an activity from third-parties with no personal relationship to you (assuming that "you" are not a tax exempt organization), are taxable income under Section 61 of the Internal Revenue Code as interpreted by case law, as a form of "compensation for services", under I.R.C. § 61(a)(1), or as "gross income derived from business", under I.R.C. § 61(a)(2) (exactly which prong of I.R.C. § 61(a) it comes under isn't legally relevant for tax purposes in this situation). This is also informed by I.R.C. § 83(a) (which is a general rule even though the balance of the Code section applies mostly to equity compensation in entities), which states in the pertinent parts (material in brackets inserted for clarity): If, in connection with the performance of services, property is transferred to any person other than the person for whom such services are performed, the excess of the fair market value of such property . . . over the amount (if any) paid for such property [by the person who receives the property], shall be included in the gross income of the person who performed such services[.] But, gifts are expressly excluded from income under Section 102 of the Internal Revenue Code as interpreted by case law. One point which the case law makes clear, however, is that an obligation to pay doesn't need to be a legally binding obligation to make a payment something that counts as income rather than a gift. The tax law instead looks at the substance of the interaction and the reality of how decent, well mannered people would act under circumstances in which they receive an uncompensated benefit. Ultimately, whether are voluntary payment made through a private individual or business's website is taxable income or is not taxable because it is a gift is a case by case determination to be made in light of all of the relevant facts. For example, if your mother donates $7,500 to your website on your birthday, even though all of your other "donations" are from third-parties whom you have never met in person in amounts from $5 to $100 and you have provided all of those other third-parties with some kind of service or benefit through your website (e.g. they were allowed to read free webcomics or listen to music you wrote and recorded without charge over the website), the donation from your mother probably counts as a gift, even though the other donations probably count as income taxable income. But, in the absence for any reason for the donation other than gratitude for the performance of the services provided by the website, or for the conduct of the business that the website belongs to, the donation will generally be treated as income under Sections 61 and 83, rather than as a gift under Section 102. The notion of a gift is normally limited by case law and suggestive related section of the Internal Revenue Code that illustrate its intended meaning in the case of gift loans and bargain sales made for donative purposes, to circumstances in which the person making the gift has received nothing in return for it. A donation to a website usually wouldn't meet this test to show a transfer's character as a gift. The most familiar example, upon which there is a great deal of case law and authoritative guidance, is that tips paid to restaurant and hospitality industry workers are income rather than gifts, and are subject not only to income taxation but also to FICA payroll taxation. These tipping situations are closely analogous to voluntary payments made through a website. There are a great many tax regulations, court cases interpreting tax law, and authoritative guidances from the IRS (such a revenue rulings) that address the basic concepts that I've set forth above. And, the income tax law authorities are further informed by the statutes and case law governing gift taxation, which is, as intended, interpreted to define a gift in a matter that dovetails more or less perfectly with the definition of a gift for purposes of Internal Revenue Code Section 102. As the IRS explains at its website discussing the gift tax for which the concept of a gift is defined consistently with the income tax concept of a gift: The gift tax is a tax on the transfer of property by one individual to another while receiving nothing, or less than full value, in return. The tax applies whether or not the donor intends the transfer to be a gift. The gift tax applies to the transfer by gift of any type of property. You make a gift if you give property (including money), or the use of or income from property, without expecting to receive something of at least equal value in return. If you sell something at less than its full value or if you make an interest-free or reduced-interest loan, you may be making a gift. Donations which are not income are gifts and there is a tax on gifts given (paid by the donor rather than the person receiving the gift). But, there is a $15,000 per donor per donee exception per year from gift taxation for gifts under the Internal Revenue Code, in addition to more than $12 million per lifetime per person exemption from gift and estate taxation for gifts in excess of this $15,000 amount (called the annual exclusion) and inheritances left at death. So, usually, if a transfer is treated as a gift rather than as income, no tax will be due. But this part of this answer's short summary of the law is the top level conceptual framework for all of those other subordinate tax law authorities. Also, this income is also subject to self-employment taxation, which is imposed in lieu of FICA on income which is not a wage, salary or employment-related tip. Often self-employment taxes are due on self-employment income even when no federal income tax is owed upon it. if there is a clear answer, do states with personal income taxes do the same regarding website donations? Most states and localities with a personal income tax start from the federal definition of income and modify that definition in ways that the taxing jurisdiction deems fit either to make sense (limiting the tax to income related to the state, for example, at least for non-residents), or to fit local policy preferences (e.g. exempting from income taxation, capital gains made in an investment in the state favored by state lawmakers). Almost no states or localities have chosen to deviate from the federal definition of income for income tax purposes with respect to donations made to websites that are not non-profit entities. | What can I do to prevent someone from leaving me something in their will? Nothing. Allowing other people to legally change someone's will defeats the purpose of a will: To express the writer's last wishes. (That is why the full title is a "Last Will & Testament"). Do I have to take responsibility for things left to me in a will or are there other options? No! You do not have to accept an inheritance. The legal process for rejecting an inheritance is called "disclaiming." It happens often enough that there are plenty of nice summaries of the process on-line. Your next step should probably be to read one of them. | Any property of a decedent which does not evade probate because of a transfer on death deed is subject to probate. It turns out that this probate avoidance in New York can include one automobile within a family, here is the main form and a companion form. But let's say that the car is worth more than the limit (and you don't want to pay the estate the excess), then it might have to go through the longer process. That does not mean that the spouse cannot use the vehicle, as long as the spouse takes reasonable action to transfer the vehicle (waiting 5 years is not reasonable). | Can an employer charge employee/contractor a processing fee for payment? No. The matter depends on whether the person qualifies as employee for purposes of the British Columbia Employment Standards Act. Your description suggests that you meet criterion (b) of the definition of employee insofar as you are (i.e., if you are) "a person an employer allows, directly or indirectly, to perform work normally performed by an employee". See section 1(1) of the Act. Section 21(1) prohibits an employer to "directly or indirectly, withhold, deduct or require payment of all or part of an employee's wages for any purpose", and item (2) prohibits the employer to "require an employee to pay any of the employer's business costs except as permitted by the regulations". There is no indication that the alleged business cost of e-transfers would be one such exception. do I have any recourse for such a small amount of money that isn't worth starting a law suit over? You have the option to file a complaint in "an office of the Employment Standards Branch". See sections 74 et seq for further details. You are not specifying the amount of the e-transfer that is being deducted from your compensation. The smaller the amount(s) at issue, the more important it will be for your complaint to persuasively explain how it is not "frivolous, vexatious or trivial". See section 76(c). Directing the employer's attention to the aforementioned statutory prohibition prior to filing a complaint tends to disprove allegations of vexation. That is because you are giving the employer an opportunity to mend its conduct and avert the proceedings that otherwise would take place. That being said, a very occasional cost of few cents is very likely to lead to a conclusion of vexation or bad faith regardless of your preliminary steps. In most other contexts, though, it is in your best interest to stay aware of the obligations that are being presented/proposed to you so that your actions do not constitute an acceptance of terms & conditions you would rather reject. Not all contracts come in the form of a written document signed by the parties. | Look at the form letters from the consumer advice center, e.g. Lower Saxony. Keep in mind that the entity may be allowed/required to keep some of your data. Anything that impacts their taxes, for starters. And your information/deletion request might also have to go on file, to mirror their record of a before-due-date deletion. | Sadly, her assets will go into probate, and a judge/probate master will have to rule on how they're disbursed. Typically someone will be appointed as Administrator to the mother's estate. The administrator will contact all creditors, assemble and inventory/appraise the assets (i.e. furniture, car, house, bank accounts, etc.) and pay funerary expenses. Since she died intestate, there will be certain specific rules about who inherits the proceeds. The best avenue for the OP is to petition the court to appoint her as administrator of the estate. | If this is Florida, then a will has to be written. If there is no written will, the estate falls under the law of intestate succession, part 1. Per § 732.502, every will must be in writing, signed, and witnessed (therefore a voice mail is not a will). If there are any relatives, they may be entitled to a share; otherwise, the estate goes to the state, where it is sold and the funds go into the state school fund (§732.107). |
Can tenants claim adverse possession during a rent or eviction moratorium? If there is a rent or eviction moratorium in place for an extended period in a particular jurisdiction, so that tenants are not paying rent, can they eventually acquire adverse possession? By "a rent or eviction moratorium" is intended a situation where landlords are prohibited from carrying out evictions for non-payment of rent, and possibly for some other reasons as well. | No A tenant cannot acquire adverse possession. As describe in the LII Article on "Adverse Possesion", one of the requirements for establishing adverse possession is that possession must be: Hostile--In this context, "hostile" does not mean "unfriendly." Rather, it means that the possession infringes on the rights of the true owner. If the true owner consents or gives license to the adverse possessor's use of the property, possession is not hostile and it is not really adverse possession. Renters cannot be adverse possessors of the rented property, regardless of how long they possess it. (My emphasis) This is the classic common law rule. The Justia article on the topic says: The occupation must be hostile and adverse to the interests of the true owner. If a landowner has given a person permission to use the property, the possession is not considered hostile. However, a landowner is not required to have actual knowledge of the occupation, so long as the occupation is adverse to the owner's property interests. For example, a landowner may be unaware that his neighbor's fence extends several feet over his property line. The occupation is sufficiently hostile, however, because the landowner has not given his neighbor permission to encroach upon his property in this manner. The Nolo article on this topic says: Adverse Possession Requires a Hostile Claim The word "hostile" doesn't mean that the trespasser rides in on a horse with six-shooters blazing. Instead, courts follow one of three legal definitions of "hostile" when it comes to adverse possession. Simple occupation. This rule (followed by most states today) defines "hostile" as the mere occupation of the land. The trespasser doesn't have to know that the land belongs to someone else. Awareness of trespassing. This rule requires that the trespasser be cognizant that his or her use of the property amounts to trespassing (meaning the trespasser has no legal right to be on the property). Good faith mistake. A few states follow this rule, which requires the trespasser to have made an innocent good faith mistake in occupying the property in the first place, such as by relying on an invalid or incorrect deed. The Wikipedia article says: In general, a property owner has the right to recover possession of their property from unauthorised possessors through legal action such as ejectment. However, in the English common law tradition, courts have long ruled that when someone occupies a piece of property without permission and the property's owner does not exercise their right to recover their property for a significant period of time, not only is the original owner prevented from exercising their right to exclude, but an entirely new title to the property "springs up" in the adverse possessor. In effect, the adverse possessor becomes the property's new owner. .... Although the elements of an adverse possession action are different in every jurisdiction, a person claiming adverse possession is usually required to prove non-permissive use of the property that is actual, open and notorious, exclusive, adverse and continuous for the statutory period .... Renters, hunters or others who enter the land with permission are not taking possession that is hostile to the title owner's rights. | Inferring from the question, it appears that: The tenancy is an Assured Shorthold Tenancy. The tenancy agreement started on 16 December 2014. The initial fixed term was for 12 months. (Please comment below if any of this is incorrect). A Section 21 order gives notice that, unless the tenant leaves by the date given in the document, the landlord will begin legal proceedings against the tenant, in order to obtain a court order forcing the tenant to leave. To answer the OP's questions: Does it mean that she wants to use her right to cancel the contract after 2 months? It looks like that to me but I am not 100% sure. Yes - but if this is before the end of the fixed term (which I'm assuming is 15 December) there must be a clause in the tenancy agreement (normally called a "break clause") allowing the fixed term to be terminated early. If there is no break clause, then you cannot be asked to leave before the end of the fixed term. What does it mean "after 16/11/2015"? After can mean anything... even end of contract in December. Yes. The landlord would like you to leave before the date shown - but if you don't, the landlord can begin legal proceedings any time after that. Is this a legal document or just something she made up? It is a legal document. Section 21 of the Housing Act 1988 allows a landlord to ask a tenant to leave without having to give a reason. The landlord must meet certain conditions in order for the notice to be valid. What happens if I want to leave the house later because I don't find alternative? You'll need to discuss that with the landlord. However, if you don't leave by the end of the fixed term, you are entitled to stay (and pay rent!) until a court (not the landlord) orders your eviction. EDIT: This website goes into a lot more detail about the whole Section 21 procedure. | There is nothing in that contract that says anything about 3 months notice period. The 3 months is the legal default for contracts that do not expire on their own, unlike yours, that has all properties of a limited time contract. I would personally see the detailed description of how you can end this contract as overriding any legal default. But as always, with this specific contract in the original language, you need to see a lawyer to know for sure. Your contract clearly states: you can leave your appartment whenever you want, even before the agreed upon time. If you leave between the 15th and the end of a month, you have to pay for that month in full. If you leave between the 1st and the 14th of the month, you have to pay the fair share of the rent for the days you where there. So for example, on a 30 day month if you lived there for 10 days, you still have to pay a third of the rent and the landlord will return the rest if you paid for the month in advance. If you live there for 16 days, you have to pay for the full month and nothing will be returned if you paid for the month in advance. Please note that you need to "hand over" the vacated rental object during normal business hours. So don't go in there on the evening of the 14th at 16:59. And don't try to "hand it over" when you haven't moved your stuff out yet. At the hand over, you give the keys to the landlord and that is it, it is the last thing you do. Very likely your landlord will want to have a look at the rental object while you are there, so they can make sure it is all in order, you did not damage it or did not leave any of your stuff. Generally speaking, there is nothing your landlord could do to you if you decide to leave early. They cannot make you leave even earlier or any other retaliatory shenanigans you may have heard of in other countries. In Germany, such contracts are not adversarial. You don't need to keep it a secret to the last second. If you know you want to leave on a certain date, inform your land lord, make an appointment for the "hand over" well in advance and save yourself (and them) all the stress from doing things last minute. | If you were given a non compliant notice, you haven’t been given notice You can stay as long as you like or for 4 months after they give you the correct notice. The landlord’s legal obligation was to give you 4 months notice: not his agent, or the Queen, or some guy he was chatting with at the pub. Whether that causes other people with other contracts problems is a matter for them to work out, it’s none of your business. However, … The management agency is the landlord’s agent. That means, as far as you are concerned there is no legal difference between what they do and what the landlord does. If either of them had given you a valid notice, it is as though the landlord had done so. However, if the landlord says something to the agent, from your point of view, the landlord is talking to themselves. If the landlord has sold the property, it comes with any existing leases. If the landlord has promised vacant possession and can’t deliver it, then they have broken the contract with the buyer and the buyers can sue your landlord for damages or possibly terminate the contract or both. If that happens, and it was a result of the agent’s negligence, the landlord can sue the agent. | 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. | The tenant is responsible for damage beyond “fair wear and tear” which this obviously is. If it is as bad as you suggest then it may require professional forensic cleaning which can run to thousands of pounds. At some point, things like carpets etc. can be cheaper to replace than to repair. There is no upper limit (beyond, at the extreme, the cost of demolition and rebuilding the dwelling), however, there may be a practical limit being the amount the tenant can pay before going bankrupt. | Yes, they can. How would they enforce it? It seems like the HOA would have to be able to request to see the tenant's credit report, background check, proof of income, and rent checks to make sure the rules are being followed. The HOA might have to make a rule giving it the right to audit members on pain of a fine or something. What is to stop the HOA from making the requirements arbitrarily high to effectively prevent renting? (Minimum credit score set to 850, for example.) Nothing. It could ban renting entirely. This comes with one important caveat. If the rental restrictions have the intent or effect of violating fair housing laws, the regulations may be void as contrary to public policy. In some cases, a total ban on renting would expose the HOA and its members to less risks than a rule that does this by implication or via selective enforcement of the rules. Basically, this means that regulations designed to bar renting based upon protected categories under the particular acts that apply (e.g. race, disability, sex, marital status, religion) would be invalid. Also the HOA has to get its members to approve the rule and not repeal it. If the rule is so draconian that it reduces the fair market value of units, the members may decline to adopt such a rule or may get rid of it. | There are nuisance lawsuits and constructive eviction arguments--you can check with your local attorneys and perhaps tenants' rights organizations for detailed information. Just because marijuana is legal under state law (if certain steps were followed) does not mean that your landlord or another tenant can interfere with your use and enjoyment of your home. Civil consequences--such as a court order to the smoker to stop smoking, money damages, or a partial abatement of your rent until the smoking stops--may be achievable. It is important to follow the rules for your jurisdiction closely when starting a legal action, so you should talk to an expert in your jurisdiction if you want to pursue legal action. But where possible, most people deal with this kind of thing by moving. |
Copyright on characters' quotes? Are fictional characters' quotes / phrases protected by copyright? For instance, Blizzard Entertainment's video games have characters saying things like "You are not prepared!", "For Aiur!", etc. Are these quotes copyrightable or otherwise belong to a particular universe? | A statement by a fictional character is part of the fiction, and so is normally protected by copyright. A short exclamation such as "You are not prepared!" might be ruled to be too short and not sufficiently original to be protected if it were used separately, but that would apply just as much to a short statement that was not a quote from a character. But something like one of Gandalf's speeches on "mercy and pity" to Frodo in Chapter 2 ("The Shadow of the past") in book 1 of The Lord of the Rings would clearly be protected. The longer and the more distinctive such a text is, the more clearly it would be protected. Whether it is put in the mouth of a character or is part of the narration makes no significant difference. Note, in a copyright sense a statement does not "belong to a particular universe", rather it belongs to a copyright owner, often the author, or in the case of a video game quite likely thy publisher. As this comment by Kevin mentions, and as I should have mentioned, reproducing a short quotation from a work of fiction, particularly if properly attributed, is quite likely to be fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more specific details. See also the threads tagged fair use If a quote is used for a different purpose than the original, in what is called a "transformative" manner in copyright cases, then it is more likely to be held to be fair use. The smaller of a percentage of the source item the quote is, the more likely it is that it will be considered to be a fair use. The less the use of a quote serves as a replacement for the source, or harms the market for the source, the more likely it is to be considered a fair use. See the links above for more detail. | may require that you obtain license rights from third-party owners or licensors of content that you include in your text inputs (Emphasis mine). Based solely on the excerpt above, yes, you have the copyright on the audio files if you created the source material, as you are the creator, using Amazon Polly as/to generate a "tangible medium". One of the central rights granted by copyright is to control translation into a different medium (in this case, from text into audio), as is the right to control distribution, which is what this excerpt is talking about. "Third party" in this case means neither you nor Amazon. Basically, Amazon is informing you that using their software on someone else's copyrighted material does not grant you copyright on the audio recording. | Presumably you are referring to works commonly called "fan fiction." Under copyright law these might be considered "derivative works" and therefore subject to the rights of the copyright owner. However, they might also qualify for exemption from copyright enforcement under "fair use." It appears that the legality of fan fiction is not settled law, and the outcome of legal challenges have turned on facts specific to each case. Decent background on the question is summarized on wikipedia. | copyright will cover the names and graphics of games The names of games are not protected by copyright, nor by patent. The names could be protected by trademark. Note that trademarks are specific to a country: what is trademarked in one country may well not be in another. Almost all countries have a way to search their trademark registries, often online. However in some countries, including the US, use of a name in commerce will confer some protection even without registration. What will be considered a "mechanic"? for example MTG have specific mana system, if someone will be creating a game with same idea but will refer to it with other names such as "Ember" instead of "Fire" will it violate the patent? Game mechanics are not protected by copyright. This includes all the procedures and rules of the game. The text used to express those rules may be protected, but often it is not if it is the most obvious way to describe the mechanics. For example, in chess there are different pieces with different moves. That could not be protected by copyright, even if chess were a new game. In bridge the winner of each trick leads to the next. That could not be protected by copyright either, even if bridge were a new game (and contact bridge is just new enough that it could in theory be under copyright still). How do i know if certain patents are applied and when they expire? Most games are not protected by patent, but some are. Patents, like trademarks, are specific to a country. Each country has a way to search its list of active patents. Note that patents have a strict tiem limit, and they normally cannot be extended or renewed. I believe that the limit of a patent is currently 20 years in most countries. (It used to be 17 years in the US.) If a game is patented in Country X and someone is printing the same game but with different art and names in country Y, will the one who print in country Y could be exposed to a lawsuit? Unless the game is also patented in country Y, there will be no grounds for an infringement lawsuit inn Y. But importing the game into X may be patent infringement, and could expose the importer to a suit. | 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). | First, copyright does not apply to "brands". Copyright exists in literary works which includes art - a picture (any picture) usually has a copyright belonging to the creator of the picture. Brands are protected by Trade Marks. To be clear: A picture of you is protected by copyright belonging to the creator The phrase "Mickey Mouse" is protected by trade mark belonging to the Disney corporation A picture of Micky Mouse is protected by copyright and trade mark. (when) would it be legally OK for me to do so without the copyright owner's permission? You can use copyright material without permission if you meet the fair use criteria in your jurisdiction. You can use trade marks if there is no risk of people confusing your goods and services with the trade mark holder's and you do not cause damage (including loss of potential income) to the trade mark holder or it is fair use (e.g. you are writing a review of a Micky Mouse cartoon). Is it legal if I do not distribute them to others at all? No, this would be OK as copyright fair use, but not as trade mark fair use. Is it legal if I give them to my family/relatives for free, e.g. as a gift? No, not fair use for either copyright or trade mark. Is it legal if I give them away to others for free (meaning I'm losing my own money on them)? No, see above. Is it legal if I sell them to others at-cost (i.e. for the same price I obtained them, meaning I'm not making any money from them)? No, see above. If the answer is "yes" to any of the above, can the copyright holder explicitly prohibit me from doing so, or would such a prohibition be unenforceable (e.g. if this would be fair use)? It isn't allowed. Yes they can stop you. No, it isn't fair use; there is no "fair use" defence for trade mark infringement here - you are depriving them of income because you are not buying their T-shirt! Any other factors that are relevant but which I'm forgetting? Will they sue you for doing these things? Probably not. | As @amon stated in a comment, copyright requires creativity. If the author of a tool wants to claim copyright on the output of that tool, then that output must contain something that required the creativity of the tool author. For a tool that just re-indents its input, the output is created from the input with a mechanical, non-creative, transformation and the output does not contain any creative content that wasn't already present in the input. For that reason, authors of such tools can't claim any copyright on the output. For a tool like bison, which was mentioned in the comments, the output contains a measurable amount of creative content that was not present in the input, but which was provided by the authors of bison. For that reason, the authors of 'bison' do have a copyright claim on the output of the tool (for which they give a broad permission to use). So, the basic question becomes, how much of the (creative) content of the output can be traced back to the tool itself and not to the input that the tool processed. For linters/formatters, that is likely to be very little. For code generators, it can be anywhere between very little and all of the output. The license restrictions on the code produced by the tool itself are by default the same as the license restrictions on the source of the tool, but the tool author can choose to apply any other license to the tool code that ends up in the output. If the output of the tool is, at least in part, dependent on an input file, then the authors of the input file also have a copyright claim on the tool output (as their creative work influenced the output), so the tool author can not claim exclusive ownership. The usual situation is that for tools that don't add creative content to the output, the author explicitly states that the don't have any copyright claims on the output. For tools that do add creative content, that content might be released under very permissive conditions (like, "you can use the output as a whole for any purpose, but you can only separate out the code that comes from the tool's codebase if you adhere to the <X> license") | You should probably look up the Open Gaming Liscense (OGL) and what you can or cannot do with respect to it. Generally, classic fantasy monsters (Dragons, Manticores, Sasquatch, Vampires). Are fair use. OGL also allows for creatures that are similar to D&D exclusive monsters to exist so long as the name is changed sufficently. Most "monsters" are in what's called Public Domain and are free to use and modify. Additionally "powers" of a monster (or superhero) aren't generally copyrighted but the totatllity of their use in a work can be (does your superhero fly? Is super-strong? Is invulerable? Can be fine. Is he named Clark Kent? That's a problem). Fair Use also allows for some parody but again, it's a defense to copyright infringment and not a liscenses to take someone elses work wholesale. It also doesn't stop them from suing you, as you have to claim fair use as your defense if and when each suit arises. I'd recomend looking at National Comics Publications, Inc. v. Fawcett Publications, Inc. for an example of an intellectual property dispute that is close to yours. Note that Fawcett won at trial but lost on appeal and rather than take the matter before SCOTUS decided to settle out of court. |
Why there are no sanctions against head of state if his/her country violates the International law by performing illegitimate acts of war? Assume that there is head of state that is elected in elections that are fully recognized in his/her country and that is at least partially recognized as a elected head of state by other countries and to whom (notwithstanding previous disputes) the other countries have conferred the full diplomatic privileges that are associated with his/her status as a legitimate head of state. Assume that this head of state takes decision to perform act of war against the other sovereign country and this act of war therefore violates the International law. Assume that other countries issue financial, economic personal sanctions against some persons of the country which performed acts of war. My question is - why there are never the sanctions against this head of state (decision maker) but why the sanctions are directed only towards the lesser functionaries? I have heard that the his/her status of diplomat provides the full immunity against such sanctions, but - I can not understand - whether or not the diplomatic immunity and privileges are preserved when his/her orders violates the International law? And in what cases (what laws additionally should be breached) the head of state is subject not only to the personal financial sanctions but he/she can be made captive (prisoner) and tried in the court or outright executed without trial? | Your question is based on an incorrect premise Heads of State can be and have been held accountable for war crimes and crimes against humanity. For example: Germany Japan Yugoslavia Rwanda | You cannot stop the claim. But the good news is that claims of jurisdiction by many countries are routinely ignored by many other countries. So enforcement attempts might fall short. I've written things here that might get me into real trouble with the authorities of North Korea if I ever traveled there and if they were able to match my real-world identity with this account. But I don't plan to travel there. Likewise, before I went to Turkey I should probably review what I've written about their government, and then wonder if it is worth the risk. Probably yes, it wasn't very incendiary. But my home country and those I tend to visit (if there is no pandemic ongoing) would not extradite me for what I wrote. | First, there is no definitive correct answer to this question because it has never happened over the course of 45 Presidencies. But, it certainly could come up. If the President purports to pardon himself for a federal crime and is then prosecuted, the judicial branch would have to decide if the pardon was valid. But, I would disagree with the answer from @user6726, and would instead take the position that the concept of a pardon inherently implies that one is pardoning someone else. This is why President Nixon, when he resigned, had Vice President Ford, when he became President upon Nixon's resignation, pardon him, rather than pardoning himself. President Bush, in connection with the Iran-Contra scandal also took the position that he did not have the power to pardon himself. Basically, a pardon is an event that is ordinary conceived of as involving two persons, a giver of the pardon and a recipient. Also, recognizing the power of a President to pardon himself or herself would be to give him or her impunity to disregard the law not just in areas where he or she has Presidential immunity, but in anything that he has ever done in his life. (Also, the President can only pardon federal crimes, not state crimes.) There is, of course, an academic literature on the subject (which none of the answers in the PoliticsSE refer to and which the other answer here does not refer to). The two leading law review articles addressing the question are: Brian C. Kalt, "Pardon Me: The Constitutional Case against Presidential Self-Pardons" 106 Yale L.J. 779 (1996-1997) (obviously adopting my position). An expanded version of this article became a chapter in a book called "Constitutional Cliffhangers: A Legal Guide For Presidents and Their Enemies" by the same author. Robert Nida and Rebecca L. Spiro, "The President as His Own Judge and Jury: A Legal Analysis of the Presidential Self-Pardon Power" 52 Okla. L. Rev. 197 (1999) (closed access). It opens with the following language (in part): [C]an the President pardon himself for criminal acts committed while or before holding office? Article II of the Constitution prohibits a President from using the pardon power to overturn an impeachment.5 The Framers of the Constitution placed only this limitation on the ability of the President to exercise his pardon power,6 and the only sanction for the abuse of the pardon power is the removal of the President through impeachment.7 The Constitution is silent, however, as to whether the President may grant himself a pardon from prosecution and, if so, when such a pardon may be issued.8 In the over 20,000 instances that Presidents have used this exclusive power,9 no President has used this power to pardon himself.10 One viewpoint is that a presidential self-pardon is inherently inconsistent with "natural law," which proclaims that one may not judge oneself.11 This article is cited in Comparative Executive Clemency by Andrew Novak who calls it an unresolved question but believes many legal scholars believe that it is possible. Leading Constitutional law scholar Adrian Vermeule analyzes but does not resolve the issue in his book "The Constitution of Risk". A 2017 Vox review from 15 legal experts is here. Their views are mixed and nuanced. A 2017 op-ed in the Washington Post from a former member of Congress who was involved in the impeachment proceedings for President Nixon says "no." Another review of expert opinion in 2017 can be found here. This also noted a dispute within the realm of academic legal opinion. There has also been debate over whether treason is treated differently for pardon power purposes than other federal crimes, but the precedent of the pardons issued after the U.S. Civil War pretty definitively resolved this question in favor of the power of the President to pardon treason, so the nature of the federal offense wouldn't matter. Note also that the pardon power is not limited to cases where criminal charges have been brought or convictions have been obtained. This issue is irrelevant to a President's self-pardon power. | Was International Law Violated? When it used chemical weapons to kill large numbers of civilians in his own country, Assad's regime in Syria was violating its obligations under the Chemical Weapons Convention, an international treaty obligation that the regime acknowledged was binding upon it in 2013 when at U.S. insistence and with Russian supervision, the Assad regime purported to destroy its chemical weapons stockpiles. It was also an action violating generally recognized standards of the customary international law of war that have been recognized since they were first clearly articulated in the Geneva Protocol of 1925 that took effect in 1928. This kind of action has also been recognized as a crime against humanity under customary international law, and this principle is why international criminal tribunals set up after crimes against humanity occur are not considered to be applying ex post facto laws. Also, since early on in the Syrian Civil War, during the Obama Administration, the U.S. ceased to recognize Assad's regime as the legitimate government of Syria. According to official U.S. policy, since 2012, the Syrian National Council, and not Assad's regime, has been the legitimate government of Syria. So, rather than being an attack on a sovereign regime, this was an act in defense of a different sometimes allied regime recognized as legitimate, with whom the U.S. is not at war. Moreover, given that fact that the U.S. now has a artillery combat ground troop unit deployed in Northern Syria as of earlier in 2017, in support of a Congressionally authorized military action in the same theater of conflict, the U.S. has a legitimate interest in protecting its own troops, as well as those of allies it supports in the part of the conflict that it is involved in under the 2001 AUMF, from chemical weapons attacks in Syria by preemptively disabling the Assad regime's ability to deploy those weapons, even though they were not directed at somewhat nearby U.S. forces in their most recent utilization this week. So, while there may not be entirely clear international legal authorization for this particular remedy for the Assad regime's clear violation of international law, there is not a clear prohibition on doing so either, and the general rule is that sovereign states have wide discretion to take military action in support of their perceived interests, particular when violations international obligations of the offender targeted for military action provide a justification for the use of military force under international law. This is because the main way of punishing a violation of international war while a conflict is still pending is called a reprisal which the Syrian strike fits to a tee. A reprisal is a limited and deliberate violation of international law to punish another sovereign state that has already broken them. . . . Reprisals refer to acts which are illegal if taken alone, but become legal when adopted by one state in retaliation for the commission of an earlier illegal act by another state. Article XII(3) of the Chemical Weapons Convention authorizes those remedies allowed under customary international law of which reprisal is one. Did The President Have Authority To Make The Strike Under U.S. Law? This said, the harder issue is whether this strike was legal under U.S. law, and not international law, which really has no meaningful binding enforcement mechanism other than politics, diplomacy and domestic law anyway. While the U.S. does not recognize the Assad regime as legitimate, it is not actually at war with that regime because the Authorization for Use of Military Force (AUMF) from 2001 that has been the main legal authorization for the "war on terror" against ISIS, pretty clear does not extend to Assad's regime in Syria. ISIS has been declared to be a successor to a branch of the organization the launched the 9-11 attack upon which the AUMF declared war. But, the formerly legitimate government of Syria (Assad's regime) is very difficult to treat as coming within that definition. However, while Congress has not authorized the use of military force by the U.S. against the Assad regime in Syria in this manner, Congress has approved appropriations to fund and support anti-Assad rebels, even though it may have been a bit of a fiasco, which at least provides some tacit evidence of Congressional consent to some sort of involvement in the Syrian civil war by the United States government against Assad's regime. In absence of an authorization of use of military force against the Assad regime, one alternative source of legal authority to make this strike is legislation (whose constitutionality has often been questioned, but has never actually challenged, was determined by the Justice Department to be constitutional in 1980, and which is arguably not justiciable) called the War Powers Act of 1973. This Act, on its face, purports to give the President the authority to make limited use of military force for short periods of time. Specifically (per the link): It provides that the U.S. President can send U.S. Armed Forces into action abroad only by declaration of war by Congress, "statutory authorization," or in case of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." The War Powers Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without a Congressional authorization for use of military force (AUMF) or a declaration of war by the United States. The question of whether this incident is within the scope of the War Powers Act is disputed with U.S. Senator Rand Paul arguing the conditions triggering its use such as an attack on U.S. forces or the United States, have not been met. The issues presented by this incident under the War Powers Act are similar to those presented in the missile strike and follow up airstrikes made by the U.S. in Libya in 2011. There is also legitimate room for dispute regarding where the authority of the President as Commander in Chief of the Armed Forces under Article II, Section 2, Clause 1 of the United States Constitution ends, and where the power of Congress to declare war and to enact other legislation pertaining to the U.S. military under Article I, Section 8 of the United States Constitution begins. Arguably, directing U.S. forces to make an isolated military strike from a location where they are already lawfully deployed in support of an AUMF authorized military mission in the region, in exigent circumstances, against a military force that is not recognized by the United States as the legitimate government of Syria, does not constitute a true act of war and is instead merely day to day management of the operations and discipline of the United States military that is within the Commander in Chief's authority, particularly when Congress has already tentatively recognized the Syria's Assad regime is an enemy of the United States in legislation short of an authorization for use of military force. Moreover, given that President Trump surely has majority support in both houses of Congress for this strike, the possibility that Congress may end up granting forgiveness rather than making much of the fact that he didn't ask for permission, may be mostly a formality in this case. Generally speaking, even if this issue is justiciable (i.e. amenable to resolution through the court system), court action to enforce separation of powers questions must be authorized, at least, by a resolution of a majority of one of the two houses of Congress. Generally speaking, taxpayer standing or just plain U.S. citizen standing, does not exist to enjoin or seek a remedy from a separation of powers violation. | You could almost define a country as, "an entity that can defend itself against invasions." Non-sovereign entities are indeed generally prohibited from deploying lethal autonomous defense systems like booby-traps. But governments and state-like actors, as a matter of practice, choose their own rules. laws-of-war and international-law are not like "regular" law: When it comes down to it, states only follow international conventions and treaties to the extent that they consider it to be in their own interest to do so. If you start mining your property, you will probably be forced to stop by local law enforcement. If a warlord starts mining his borders, he's going to get away with it until someone with more power convinces or forces him to stop. Was it "illegal" for Turkey to shoot down a Russian military aircraft? One could cite all sorts of laws and conventions to answer that question. But in practice the consequences of that act are limited to whatever Turkey allows, or to what Russia and its allies can impose on Turkey. | Documents from countries which did not sign (or to be received by non-signatory countries) must be certified by the foreign ministry of the source country (or its equivalent) and then further certified by the foreign ministry of the receiving country, before such documents can be used in legal proceedings. The Wikipedia article says: A state that has not signed the Convention must specify how foreign legal documents can be certified for its use. Two countries may have a special convention on the recognition of each other's public documents, but in practice this is infrequent. Otherwise, the document must be certified by the foreign ministry of the country in which the document originated, and then by the foreign ministry of the government of the state in which the document will be used; one of the certifications will often be performed at an embassy or consulate. In practice this means the document must be certified twice before it can have legal effect in the receiving country. For example, as Canada is not a signatory, Canadian documents for use abroad must be certified by the Deputy Minister of Foreign Affairs in Ottawa or by a Canadian consular official abroad, and subsequently by the relevant government office or consulate of the receiving state. This seems to answer the question rather completely. | 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. | 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. |
Can I be taken to small claims court? I ordered something on Ebay, paid for it and received it within a week. A week later I received the exact same item from a completely different vendor than the one I ordered it from. Trying to be honest, I contacted the second vendor and explained that they sent me this in error, thinking they would send me money to ship it back, but they only asked my name and address. This all happened in October 2021. Today I receive a certified letter addressed to me saying: You recently made a purchase for $xx.xx on October, 20, 2021(I never did), per order #xxxxx. You received the item on October 28, 2021 via USPS through tracking number xxxxxx. You kept your entire purchase after creating a chargeback for Card Absent Environment. You failed to withdraw your chargeback, chose not to refuse delivery, and failed to return the items. We would like to resolve this issue amicably. Please forward $xx.xx (the cost of your order) within fourteen days. If we do not hear from you by January 21, 2022, we will promptly file a lawsuit in small claims court. Sincerely, XXXXX Laguna Niguel, California I called the company and they said someone else ordered it, whose name I didn't recognize, and said I would need to pay for the scope or pay to ship it back to them. I feel like they should pay for the shipping, given that I never ordered it. I contacted them initially trying to do the right thing and now they threaten to sue me? Is this just an empty threat so they can recoup their money? Any answers would be greatly appreciated. Thanks | If someone sends you something that you did not request, that is "unordered merchandise", and under US law, can be treated like a gift meaning that you do not have to return the goods or pay for it. Under the circumstances that you describe, this is not classic unordered merchandise. The vendor simply has to claim (and prove) that you did order the merchandise, which could be done in small claims court. What is unclear at present how any person could, out of the blue, decide to send you the same thing a week later. Innocent error is one possibility (slip-up by either party or some communication error by Ebay), as is fraudulent skullduggery (credit card fraud). The point is that the vendor would have to prove that you did indeed order the goods, so if they want to avoid paying for shipping (if we are still talking about a non-litigious response), they would need to provide compelling proof that you did indeed order the goods. This almost certainly will involve Ebay's tech staff (who would be in the best position to say where the order actually came from). So, yes, you could be sued in small claims court, and it really depends on how strong their proof is that you ordered the goods. | A simple EULA does not absolve you from legal responsibility. The law that you need to be acquainted with, if you are dealing with the US (i.e. might be sued in the US), is the Digital Millennium Copyright Act, in particular Title II, the Online Copyright Infringement Liability Limitation Act which states the "safe harbor" provisions. Aspects of DMCA safe harbor are covered in many Law SE questions. In essence, you have to provide a way for rights holders to complain that someone has infringed their copyright on there site, and you have to take down allegedly infringing material: and there are a number of legal formalities to attend to in doing this. The main point is that you can't just ignore the problem and hope it goes away, and you can't just say it is not your responsibility, which is what a simple EULA does. To be protected, you need a "designated agent" where complainers can contact you. You provide the information online (as well as stating the DMCA policy, which can be in the EULA), and also register that information with the Copyright office (online). The complaint has to be in writing, and most of the burden is on the author of the complaint, but you still have to be sure that the complaint is legally conforming. The complaint has to say what was infringed (e.g. the URL), the identity of the protected content (title of the book, for instance), and provide the complainer's signature and contact information. It also requires the complainer to say that they have a good faith belief that the material is illegally copied (no permission, and not otherwise allowed by law), and a perjury statement that the foregoing is accurate and authorized by the copyright holder. When you have a conforming notice, you must "expeditiously" remove / disable the infringing material (there is no definition of "expeditious"), notify the user, then wait for a proper counter-claim (same general form as the take-down claim but where the user denies the posting the material was illegal. If you get a counter-claim, you notify the alleged copyright owner and wait for them to file suit in 10 days. If they don't do that, you restore the material. Here is a sample complaint, and a sample counter notice. Also, this document (look for the download tab) reorganizes the legal language so that requirements are put in logical order and not randomly scattered throughout the US Code. | In all such offers that I have seen, there is an agreement explicitly saying that if the service is not cancelled by the end date of the trial, a recurring charge for the price of the service will be made, and the customer authorizes this. If there was such an agreement, the charges would be authorized, not fraudulent. The question does not say what agreement accompanied the free trial. But any reasonable person would know that credit card info is only provided when a charge is at least possible. Addition: The question now says: Reviewing an example of the vendor's website, it says in big print "Monthly Plan $0.00/mo" and in fine gray print it says "Renews at $5.88/month." In that case it seems to me that the customer agreed to the recurring charge. What was purchased was access to the service, and whether the service was in fact used is not relevant. Unless there is a consumer protection law specifically requiring such terms to be "prominent" or otherwise making this deal unlawful, it seem to me that the customer has agreed, and the charge nis in no way a false claim. But it is possible that a court would rule otherwise. It is my experiences that in such cases the credit card company can and sometimes will act as an agent for the customer, and can often obtain refunds for multiple past charges. No doubt they have mush stronger negotiating power. But such refunds are not a matter of law, I think, rather of business practice and good will. | If they actually mean $0, then that is not "taking advantage". If they do not mean $0, it is most likely that they will tell you "Sorry, we made a mistake, we're not gonna send you that Rolex for $0 plus shipping". If this came with free shipping, then you would not actually have a contract, because there s no consideration on your part (no payola). Fortunately, there is shipping, so there is a contract. You could then attempt to force them to send you the goods, which they might do rather than irritate you, but not if it is a Rolex. One of the defenses against enforcing a contract is "mistake", and a $0 Rolex would be a great example of that. Things get a bit more tricky if you relied on their free Rolex. You would look up the doctrine of promissory estoppel, to see if the seller could be estopped from making the mistake argument. Let's say that you also bought a Rolex Display Case from someone else at a cost of $100 plus shipping. By relying on their promise to sent you a Rolex, you have suffered a loss. The most likely outcome is that they'd have to reimburse your Display Case expense. (Finding) mistake airfares is an industry: a common response for the airline is to say "Oops, sorry", though sometimes they honor the mistake fare. Rumor has it that rather than get trashed on Twitter, the airlines honor mistake fares. You may find disclaimer language pertaining to verification of prices and availability, which also gets them off the hook. At any rate, you certainly won't be sued or prosecuted for assuming that they mean it and buying the thing; you might be disappointed. | You are describing a liability suit. My sense is that based on the facts you describe you will face two serious challenges to making a successful case. Damages and liability. In order to win a liability case, you must first establish that you have been damaged in some way. According to your facts, your damages are at best, the replacement value of a used controller. I'm guessing that's what, $20 or so? That doesn't cover the cost of an attorney's time to even begin to hear your version of the facts, much less give you advice or pursue a case for you. After you establish damages, you must prove the company is responsible or has some share of liability for causing your damages. Again, I think this is going to be an obstacle for you. Not placing a warning that the game will affect you by causing you to throw your controller and be mean to your mom would be unprecedented if you were to prevail. AFAIK. | If you were to seek legal recourse for breach of contract (their Terms and Conditions), the best outcome you could hope for would be "making whole", and since they have already offered this a court could award you what the retailer already offered, but make legal costs on both sides the plaintiff's liability (ie. you), since you could have taken the offer and avoided court. The Terms and Conditions associated with the discount code mean that you won't be able to return the gift cards for cash. It will be argued that by using the code, you agreed to those terms and conditions. The second paragraph of their reply looks like an attempt to scare you, but it has legal merit. By using the unauthorised code you could be considered to have made false representation when you entered into the contract. This could render the contract void, and if they could demonstrate it had been done deliberately to gain money it could meet the threshold for fraud (which is what the police would possibly investigate : if it can be shown that you were aware the discount code didn't apply to you it would constitute making "a false representation ... to make a gain for himself" [sub-paragraphs 1-5, paragraph 2 of the Fraud Act 2006]). You may be able to argue that the voucher websites misled you (though it sounds like you, I and the retailer already know that's not true), but since the retailer has offered to repay what you paid there are unlikely to be any damages - and, unless the voucher site took commission from your transaction, a contract between you and the voucher sites would be difficult (possibly impossible) to establish. In the circumstances, returning what you originally paid is a good offer. | There is a good chance that you have some kind of remedy. But, in all likelihood, there is no cost effective remedy to vindicate your rights in a $400 dispute. If it was a $400,000 dispute, the federal courts would provide a good venue to resolve the dispute. In a $400 dispute, your best shot is probably to seek to have the credit card company reverse the charges, if you paid by credit card, or resort to consumer arbitration, if the contract of sale provided for it. I don't know if the remedies available for a credit card purchase in these circumstances are also available in the case of a debit card, but the agreement by the bank on that issue would be worth investigating. | You have a contract - they have fulfilled their obligation (they paid you), if you do not fulfil their obligation (not to post it online) then you are in breach of the contract. Your obligation continues even if you gift the money back to them. If you breach the contract then they can sue you for the damage that they suffer. Presumably this would be damage to their reputation and for a public figure this could run into millions of dollars. In demanding additional money from them beyond what you are legally entitled to you are, at least, flirting with the crime of extortion/blackmail. This would not be a matter for them to sue you for, it would be a matter for the DA to prosecute if they chose to make a complaint. There doesn't seem to be a defamation issue here because you are not stating anything that isn't true. Now, the extent of the agreement appears to prohibit you posting it on the internet, however, the spirit of the agreement is that you will keep the information secret in all respects - that is likely how a court would look at it. Of course, if someone does steal the information from you then you haven't broken the agreement but you would probably have to prove that it was stolen when they sue you. |
Can you trademark a word in a dictionary? Can you trademark a word in a dictionary? https://www.theverge.com/2013/7/31/4574878/microsoft-skydrive-name-change-bskyb Sky trademarked the word Sky, so I am wondering if words such as Tornado, Banner and Diesel could also be trademarked. Someone said to me. We can't, but Microsoft had to change Skydrive to OneDrive due to Sky. The fact that the British Sky Broadcasting Group owns the word Sky sounds ludicrous to me. | Yes, but... Trademarks generally have a particular class of goods or services they apply to. For a common word such as "sky", a trademark will only be granted for a very narrow set; there's no chance of getting an "all purposes" trademark like you could for a made-up word. For example, VuongGiaNghi Nguyen holds a trademark to "Sky" in the United States when describing "Eyelash Glue, Eyelash Extension Glue, False eyelashes, False eyelash perm kit, Lash Extensions", while Strange Loop, LLC, holds a trademark to it when describing "Downloadable software featuring conversational agents to facilitate communication between humans and machines in an electronic messaging platform for use in the healthcare and medical fields". I'm guessing that British Sky Broadcasting's trademark has a "goods and services" that overlaps or is very similar to Microsoft's use of "sky". | Making the game free makes very little if any difference to the position here. There are two kinds of IP issues that could possibly be involved: copyright and trademark. Note: both copyright and trademark are civil, not criminal issues (except in very limited circumstances which do not apply to the situation described in the question). You will not "face charges" but might possibly be sued. If you are asked to take down such a game and comply, this might end the matter, but if an IP holder claimed that damages had occurred before the game was taken down a suite might possibly still be brought against the developer. Copyright Names, like titles and other short phrases, cannot be protected by copyright. As long as no other text from anyone else, and no images are copied or imitated, copyright is not infringed. This means that there are no copyright issues. Game mechanics and rules cannot be copyrighted, although the words of game rules can be. Therefore, fair use which is a strictly US copyright legal concept, is not involved here. Neither is fair dealing, a somewhat similar legal concept from the UK and some commonwealth and European countries. Trademark Here is the main issue for this situation. The names of individual Pokémon characters are probably (almost surely) protected as trademarks. That means you cannot use them to identify your game, or any other product or service, and you cannot use them to advertise or market your game. This is true even if the "selling price" is $0. The use here does not seem to be nominative use, as you are not intending to refer to Pokémon or any of its variants. You are just reusing the names. As long as you make it very clear that your game is not made by, nor in any way authorized or endorsed by the makers of Pokémon, this is probably not trademark infringement. But if the makers of Pokémon become aware of your game, they might well send you a cease and desist letter, and they might file a trademark infringement suit. Even if you were to win such a suit, as I think you might well do, it might be costly to defend. Could you alter the names to ones you invent form yourself? That might save a lot of trouble and hassle. What is the value to you in reusing the well-known Pokémon names? | This is unlikely to be a problem. There are many companies that have already registered software-related trademarks prominently involving an X or the name Xcom. That Twitter has changed to X branding does not substantially change this general situation. With trademarks, the general question is whether similar branding causes confusion. It is unlikely that someone would confuse the X display server / X.Org project / X.Org Foundation with the social media service now being branded as X or x.com. Of course, anyone can sue anyone, the real question is whether that's possible successfully. Here, I have my doubts that x.com could successfully demonstrate confusion in its favour. It is worth noting that the X.Org Foundation does not seem to hold any relevant trademark registrations at all. This is not unusual for Open Source software projects and doesn't mean that X.Org has no rights, but does make a defense a bit more difficult. However, there also doesn't seem to be a relevant registration by the ex-Twitter company or by the X Corp. The x.org domain name is unlikely to be threatened. If the x.org domain name was being used in bad faith it could maybe be seized, but the X.Org Foundation has a pretty strong claim on this name. For historical context, both x.com and x.org were among the six single-letter .org/.net/.com domain names when such registrations were stopped in 1993. But while x.com has been pretty much dormant since that company was renamed to PayPal, x.org has (I think) always been associated with the display server software, and has been used continuously by the X.Org Foundation since its establishment in 2004. | It depends. Symbols which are not entitled to trademark protection in a market, usually because they are merely descriptive or generic or functional, are in the public domain and may be used by anyone, but a person using a descriptive or generic symbol can't prevent someone else from using the same symbol to promote their own business. For example, I can use the scales of justice symbol to promote my law practice on my law firm website. But, since that symbol is a generic one in the law firm market, I can't sue a competing law firm from using the same symbol on their website. The essence of a protectable trademark that an owner of can legally exclude competing firms in the same market from using, is that your firm manages to infuse into the distinctive affectation for which trademark protection is claimed with what is called "secondary meaning" to the words or image or other manifestation of the trademark when it is used in the market where the owner of the mark wants to obtain trademark protection. For example, descriptive trademarks are not eligible for trademark protection and are instead in the public domain and can be used by anyone in a market where the mark is descriptive. You can't gain a legally protected right to use the word "liquor" to describe a business that is engaged in selling liquor, and you can't gain a legally protected right to use the words "doughnut shop" for a business that sells doughnuts. But, if you use the words "doughnut shop" to describe a business that sells liquor or bras, rather than doughnuts, and those words come to be associated in the mind of the public with your particular chain of liquor stores or lingerie stores, then the words "doughnut shop" have acquired a "secondary meaning" which can be legally protected by trademark law allowing you to deny other businesses the right to use that trademark in the economic market where it has acquired a secondary meaning. (The scope of an economic market can be both geographic and conceptual related to the nature of the products sold. The manner in which an economic market is determined for a mark is beyond the scope of this answer or the original question.) The analysis with respect to symbols is analogous. You can't gain legal protections for using a common symbol in a manner that merely conveys its pre-existing common meaning. For example, if you use the hashtag sign # to mean "number" or "pound", that probably cannot be legally protected by trademark law. But, suppose that one particular firm (e.g. Twitter) uses the hashtag sign in a novel sense associated exclusively with a service that this particular firm provides, in a manner that is not semantically derived from its pre-existing meanings. In that situation, the firm might very well be permitted to claim trademark protection for the use of that common symbol in this new sense that has a "secondary meaning", which associates that symbol in a certain context exclusively with that firm, in the market where that firm does business. Similarly, you could probably not gain trademark protection for the common highway "yield sign" design to mean "yield" or be careful or some other similar semantic meaning. But, if you used the common highway yield sign to sell spaceships, and people came to associate that symbol with the spaceships sold by your particular firm, rather than with spaceships in general, you might be able to secure trademark protection for the yield sign symbol in that marketplace. It is easier to develop a "secondary meaning" for a distinctive and particular stylized presentation of either words in a particular script, or a variation on what would otherwise be a common symbol, than it is to develop a "secondary meaning" for generic words or a generic symbol that is has an existing meaning in other contexts. For example, while Apple could probably not have claimed trademark protection for an image of a clock spinning clockwise while the user has to wait while the computer is thinking about something, Apple's distinctive variant of this image (which some people call the "pinwheel of death") might very well be eligible for trademark protection.' The AppleOS pinwheel of death | There is a general belief that a term being trademarked means that it's illegal to use the term without permission from the trademark holder, but that is false. It is illegal only if it is done in a manner that suggests endorsement by the trademark holder. For instance, selling a football as a "Super Bowl football" would be trademark infringement, as it implies NFL involvement in the production of the football. Simply talking about the Super Bowl, such as saying "Our construction company built the stadium the Super Bowl is being played in" is not trademark infringement. Simply using a trademarked term to discuss the thing it refers to, without implying endorsement, is known as "nominative use". However, even if one would be on solid legal footings and could win a lawsuit on the basis of nominative use, one might avoid using a trademark to avoid the hassle of being sued. | The question as worded implies that if something is a parody it is automatically fair use or allowed in US copyright law. This is a myth. First of all, in a copyright context, the term "parody" is somewhat limited. In that sense, a "parody" is a new work which comments on the original (often but not always by mocking or ridiculing the original). A mere alternate version which modifies the form of the original, perhaps humorously, but not to comment on the original or perhaps on much of anything, is not a parody. A new work which modifies the original to comment on something else, but not on the original, is a satire. Of course many works may be both parodies and satires in this sense. See this law.se Q&A for extensive quotes from Suntrust Bank v. Houghton Mifflin Co 268 F.3d 1257 (The case of The Wind Done Gone vs Gone with the Wind) and discussion of what is and is not a parody in US copyright law, and when a parody is fair use. A parody, because it comments on the original, will often be found to be a fair use of the original. But not always. The full four-factor analysis must still be done, and the results are never certain until a court has passed on the specific case. See this law.se Q&A for more on fair use. I can't tell from the question whether the modified song is truly a parody in the sense used in copyright law. If not, it probably isn't fair use, although it might be for other reasons. By the way, a song written for a television show or video to be distributed commercially is a commercial use, even if a non-profit corporation is involved, and even if there is an educational purpose. Note that fair-use is a strictly US legal concept. Even if something is fair use under US law, it may be copyright infringement under the laws of some other country. | A short phrase such as the band's name, or a song title is not protected by copyright, either in the US or the UK. The shirt as a whole is not protected by copyright, because you created the combination of image and words. The band's name or song title could have been protected by trademark law, but this almost surely doe snot apply, because: A. You are not selling anything, so trademark protection would not apply. B. The phrases are not now being used in trade, because the band is no longer selling music. Thus any trademark protection should have lapsed. The image of the singer may be protected under his "personality rights" but this usually only protects use for commercial purposes, which a shirt for your own personal use isn't. Even if there were an active trademark, the owner is not likely to find out and order you to stop for one short for personal use. In short, the actions described should be legally safe, but selling such a shirt to multiple other people would be a different matter. | It's best to use formal names in legal documents. For example, Ringo Starr's musical compositions are credited to Richard Starkey. If you have a business that wishes to do business under a name other than its legal name, you can investigate d/b/a ("doing business as") designation. For the purpose of a single contract or other document, you can usually include language that designates a name for the business such as "this agreement is between Full Name Incorporation, Inc, hereinafter known as Trademark®, and...." You shouldn't do any of this in real life, however, without first discussing it with your lawyer. If you believe that there is business value in calling your company "Foo" when its actual name is "Bar Corp," then surely that value warrants some expense to find a lawyer who will defend the validity of the company's contracts in court, should that become necessary. |
In this day and age, how hard is it to get away with a (non-political) crime by escaping to a different country? While extradition treaties exist, the worldwide network of extradition treaties is quite sparse, and in addition many countries have a policy to never extradite their own citizens. This might lead one to wonder: if someone commits a crime (an uncontroversial, completely non-political crime, e.g. old fashioned theft or murder) in country A, then escapes to country B, who cannot extradite him back to A, what typically happens next? Do the two governments arrange an ad hoc extradition agreement, or does country B's authorities deal with the criminal themselves, or might he simply walk free? In the case of the second possibility, how common is this? (I.e. is it common to prosecute someone for a crime committed overseas?) And wouldn't that potentially be a very arduous undertaking? Considering, for example that all the evidence and witnesses would be in country A. It also may be difficult for lawyers and judges in country B to discuss and understand a case that occurred in country A, if those countries are far apart geographically and speak different languages. | Countries can, and do, extradite accused criminals even in the absence of an extradition treaty. There is always some political context to any extradition decision. In particular the sending country's judgement of the fairness of the requesting country's system of courts will be a factor. As to the practicalities, the requesting country will often supply hearing transcripts with its request. In some cases witness may travel to the potential sending country to testify at a hearing there. Some countries will prosecute a person found in their jurisdiction for crimes allegedly committed elsewhere. Others will not, or only in limited circumstnces. Some treaties, such as the treaty on air piracy, require a county to either extradite or prosecute an accused. There is no one answer to what happens in such circumstances. | Sure, but Qatar is not in the jurisdiction of the ECHR! For the ECHR to apply in a jurisdiction, Qatar would need to have signed it or be in the EU or at least have been in it. It never has been. In fact, not even Den Haque would have power over Qatar unless they allowed it to - and that court rules on matters of war crimes... Qatar does not guarantee the same rights you might be familiar with from most western countries. In fact, not even all western countries are the same. In America, you can use the Sieg Heil gesture, in Germany, you can end in jail for it.. Same for Propaganda materials. | While this isn't a simple and direct answer, it should point you in the right direction. There are countries which like the United States have parallel national and subnational court system, including Australia, Belgium, Brazil, Canada, Ethiopia, Germany, India, Mexico, Nigeria, South Africa, Spain, and Switzerland. Different rules of procedure for different courts within a larger overall court system for a federal jurisdiction are not that unusual even in nominally unitary court systems. But, the division between them is on something of a continuum with fine shades of differences between them. Only a few are as close to the extreme of power sharing and a "federalist" approach as the United States, however. Also even unitary court systems (in a geographic and federalism sense) often have parallel court systems on subject matter grounds. For example, France has both ordinary civil courts and labor courts whose rulings could overlap, and England historically had courts of law and courts of equity with a complex relationship to each other (and also ecclesiastical courts with jurisdiction of matters now vested in the civil courts of law like inheritance of tangible personal property). Similarly, Northern Ireland has or has had what amount to different parallel legal systems for terrorism and non-terrorism criminal offense. Most countries also have parallel criminal and quasi-criminal legal systems for civilians and soldiers respectively. I've seen this tension between the two systems as a plot point in contemporary English police procedural dramas, for example. On the other hand, systems with a more unitary legal system rarely are so fierce in their defense of protections against double jeopardy as the United States, and the dual sovereignty doctrine in U.S. double jeopardy law can be seen as a safety valve in practice and as applied in cases where the double jeopardy rule as interpreted under the U.S. Constitution is too strong a bar to legitimate second prosecutions. A comparative analysis of double jeopardy concepts can be found here. It is tricky to reduce the subtly differences between the rules in different countries to a clear yes or no kind of answer. A square answer to your question requires detailed examination of a dozen or more court systems that someone felt the need to write a book about to explain. If I can find a more specific answer I will update this one. | The main question is whether the US has jurisdiction outside the US, which means either "in another country" or "in no country" (viz. the high seas or outer space). It has generally been felt (legally) that the US has no jurisdiction over foreign countries, see especially Banana v. Fruit, 213 U.S. 347 "the general rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where it is done". This is known as the "presumption against extraterritoriality": it is a presumption, not a rigid absolute rule. However, there are exceptions. The Alien Tort Statute (one of the first laws of the US) says "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States". An application of that law is Filártiga v. Peña-Irala, where defendant tortured and murdered plaintiff's daughter, all parties being in Paraguay at the time: the court held that the US did have jurisdiction, under the ATS. Nevertheless, in Sosa v. Alvarez-Machain, 542 U.S. 692 which involves an extraterritorial kidnapping, SCOTUS seems to have said that this law is primarily about granting jurisdiction, and not about creating new torts, and they indicate that the wrongful acts within the scope of the ATS are, specifically, "offenses against ambassadors, violation of safe conducts, and piracy" (at any rate, it's clear that damage arising from pollution would not be within the class of bad acts referred to by ATS). Kiobel v. Royal Dutch Petroleum Co. reaffirms the limit on what torts can be pursued under ATS. In this case, the issue is whether RDP might be corporately liable for acts that could be illegal under US law, and the court says "[w]hen a statute gives no clear indication of an extraterritorial application, it has none" (citing Morrison v. National Australia Bank Ltd.). Accordingly, Taylor Jr. was held liable for his role in torture in Liberia, since the Torture Victim Protection Act does specifically allow for actions against individuals acting in their official capacity, outside the US, for torture and extrajudicial killing. "Sanctions against" is kind of open-ended. The US government can (under some circumstances) prevent US persons from doing things with respect to some other country, such as the restrictions against doing business with or visiting Cuba, Albania, North Korea etc. as have existed withing the past quarter century. Were I interested in sending money to a person in Iran vs. a person in Canada, I would have more problems in the former case owing to "sanctions". I think we can safely conclude that the US cannot (in terms of US law) declare that "whatever acts of a foreign entity overseas offend the federal government shall be litigated as though the acts were committed within the proper jurisdiction of the US" (or, more simply, "the proper jurisdiction of the US government is the universe"). Congress has not yet passed such a law about extraterritorial pollution, so until it does, it cannot sanction overseas polluters. When/if it does, it presumably can, though enforcement is another (political) matter. | Murder is one of the few cases where the intention and not just the act is relevant. The act – killing a person – is the same for Mord and Totschlag, whereas fahrlässige Tötung covers acts that have caused the death of a person. The language of the Stgb labels the perpetrator who killed someone as a murderer or manslaughterer depending on their intention. That a person and not an act is punished is often criticized, but it has no practical consequence. Clearly, the intention isn't that the second one is free. Courts are able to interpret the law reasonably. However, the distinction between two kinds of killings seems to have no basis in reality and robs courts from flexibility to find a just sentence. There are occasional attempts at reform, but none will be successful while CDU/CSU is part of the government. | This issue was addressed in United States v. Meng, 2020 BCSC 785. The authority to extradite is via the extraditing state's treaty with the U.S. and its domestic implementing legislation. In Canada, this is the Extradition Act. Extradition requires consent of the extraditing state and for the requesting state to follow the extraditing state's domestic procedure. The question you raise is how sanctions of requesting state affect the interpretation of the domestic offence for the purpose of establishing the double criminality requirement. Critical in this case was that the charged offence was fraud against HSBC (albeit based on alleged concealment of sanctions violations). See para. 23: The double criminality question in the committal hearing is therefore whether Ms. Meng’s alleged conduct, had it occurred in Canada, would have amounted to fraud contrary to s. 380(1)(a) of the Criminal Code. Ms. Meng argued: that the conduct cannot amount to fraud because in essence the proposed prosecution is to enforce US sanctions laws against Iran, measures that are not part of Canadian law and which, indeed, Canada has expressly rejected. The Attorney General argued: that the double criminality analysis may properly take the US sanctions into account as part of the foreign legal backdrop against which the essential conduct is to be understood. The court agreed with the Attorney General: The effects of the US sanctions may properly play a role in the double criminality analysis as part of the background or context against which the alleged conduct is examined. | From what I can gather, a US citizen could literally commit first-degree murder in another country, and not be held liable in US courts. Yes. From looking at the decision in Kiobel v. Royal Dutch Petroleum Co., it seems a corporation could go so far as to commit genocide in another country and not be held accountable in US courts. Yes. Why is US law set up in this way, and why has nothing been done to change it? Extraterritorality The modern nation-state is part of the Westphalian tradition of sovereignty which takes as a core value that the internal laws of each nation-state are a matter for it and it alone. This is baked into international law as part of the UN charter: "nothing ... shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state." The basic assumption of criminal law is that it is, by default, territorial. If a US national commits a crime in the Ivory Coast, then that is primarily the Ivory Coast's problem to deal with. There are both practical and political reasons why this is a good idea. The practical matters are that law enforcement and the courts in the Ivory Coast have the on-the-ground resources and knowledge to investigate and prosecute the crime and the US doesn't. US police forces can't collect evidence and interview witnesses in the Ivory Coast unless the Ivory Coast allows it. US courts can't subpoena witnesses. On the flip side, foreign jurisdictions don't have to follow the US Constitution when conducting searches and beating up, I mean, interrogating, suspects. That may make a lot of the evidence collected in foreign jurisdictions inadmissible in US courts. The political reasons are the US (and anyone else) should stay the f&^% out of the internal operations of other countries. The treaty of Westphalia ended 30 years of the most brutal warfare in history, which killed an estimated one-third of Europe's population, which was largely fought because the ruler of country X wanted to tell the ruler of country Y what religion they should have. Extraterritorality in US law Constitutional restrictions can limit exterritoriality. First, the statute must be within Congress' power to enact. Second, neither the statute nor its application may violate due process or any other constitutional right (see above). The presumption is that Federal laws only apply within US territory. To be extraterritorial, Congress must make this clear, ideally explicitly, but the courts can find that some laws are implicitly extraterritorial based on their language. Other nation's approach is different. For example, a French citizen is subject to French as well as local law everywhere in the world. | I imagine, under the relevant extradition treaty, US law enforcement would arrest the killer upon request from Canada and extradite them to Canada, where they are then prosecuted by authorities there. |
"This policy" words (in Mozilla Community Participation Guidelines) with no specific policy mentioned right before. What does it refer to? Mozilla Community Participation Guidelines: Version 3.1 – Updated January 16, 2020 Modifications to these Guidelines Mozilla may amend the guidelines from time to time and may also vary the procedures it sets out where appropriate in a particular case. Your agreement to comply with the guidelines will be deemed agreement to any changes to it. This policy does not form part of any Mozilla employee’s contract of employment or otherwise have contractual effect. Which policy is above referred to? Modifications? If so, does it mean adherence to Guidlines is fixed to version current at the moment of commencement of employment? Otherwise? It seems to me it cannot refer to Guidelines as before that paragraph it is stated: Mozilla staff in violation of these guidelines may be subject to further consequences, such as disciplinary action, up to and including termination of employment. | "This policy" is referring to the Mozilla Community Participation Guidelines as amended (basically a Terms of Service (TOS) agreement). If so, does it mean adherence to Guidlines is fixed to version current at the moment of commencement of employment? Not really. It means that Mozilla Community Participation Guidelines are primarily guidelines for members of the general public who are not employees, and that different unstated policies delivered to employees are what govern employees instead. There are consequences for Mozilla employees failing to honor the current version of the Mozilla Community Participation Guidelines, but those consequences are set forth in an employment contract with the employees rather than being limited to the consequences and procedures set forth in the Mozilla Community Participation Guidelines for members of the general public who aren't employees. | Possibly I am Australian so I am not familiar with Albertan labour law but I have done a little research and the underlying common law principles are similar. I will assume that you are covered by Albertan law and not the Canada Labour Code. The next part of the answer is based on A Guide to Rights and Responsibilities in Alberta Workplaces. First, if you lost it they would need to ask you to pay for it, they could not deduct it from your pay without a garnishee order (p. 10). Second, if the device is safety equipment, and it is certainly arguable that it is, then it is the employee's responsibility to use it and the employer's responsibility to keep it in safe working order; this would include replacing it if it were lost (p. 12). The common law position depends on a) the contract and b) if any negligence were involved. Contract What does your current employment contract say about your use of the employer's equipment generally and this item in particular? If it says something then, unless it is an illegal term, that is what happens. If it is silent, then it turns on the particular circumstances. Also, a contract cannot be changed unilaterally, if they are trying to introduce a new term then you have to agree to it; remembering that there may be consequences to taking a stand against your employer, you should say that you do not agree - this removes the risk that the employer could argue that there was tacit agreement. Negligence In order to establish negligence as a Cause of Action under the law of torts, a plaintiff must prove that the defendant: had a duty to the plaintiff, as an employee this is virtually a given; breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), this would depend on the circumstances of the loss or damage. You have to take reasonable care of the equipment - this is not a subjective standard, you need to do everything that a person in your position can do to protect the equipment from loss or damage; the negligent conduct was, in law, the cause of the harm to the plaintiff. This has to do with the "proximity" of the harm, if for example the device needed a battery change and you took it to a technician who damaged the item in changing the battery then your actions are not proximate to the loss; and the plaintiff was, in fact, harmed or damaged. Well, if it is lost or damaged this is pretty unarguable. So, if you take reasonable care of the device and, notwithstanding, it is lost or damaged then you would not be liable for negligence ... probably. Talk to your union rep; this is exactly the sort of stuff that they are there to sort out. | I virtually never see "without prejudice" used in anything but court documents, unless the writer does not know what he's saying. A typical example would be when a person sues someone, but brings the case in the wrong court. The judge would dismiss the case without prejudice, meaning that the plaintiff could refile somewhere else. In contrast, if the person filed in the correct court, but the judge ruled that the plaintiff had done nothing wrong, the judge would then dismiss the case with prejudice. I believe I have on some occasions seen the phrase used in legal correspondence, perhaps noting, for example, that a party was willing to settle his sexual harassment claim for X amount of money without prejudice to their claims for some unrelated issue. In either event, "without prejudice" is typically referring to the ongoing ability to litigate a claim. I'm not entirely clear on how you're envisioning it being used as e-mail boilerplate, but I can't see any reason to do so. If you did, that would not have any effect on the e-mail's admissibility. EDIT: One other note, because I hadn't looked at it before. The LinkedIn article to which you linked and the comments on it are basically nonsense. Legal advice from a graduate of the "School of Life" is about as valuable as life advice from a graduate of a school of law. | No punishment followed because those policies are not the law, and, even it was found out earlier, no Inspector General would have the authority to dismiss Mrs. Cliton, it's POTUS's prerogative, as I understand it. That is true for maybe 10 people max in a government department. For the tens or hundreds of thousands of employees who weren't appointed by the President to serve at their pleasure, violating policies can lead to suspension, fines, or dismissal. | 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. | This article is from an official Emirates news agency, which confirms the change (Federal Law 12/2016). This is a change to Federal Law 5/2012, replacing Article 9 (the translation into English is odd because the verb phrase goes first). The level of the penalty has increased (minimum 150K → minimum 500K; maximum 500K → 2M). Incarceration is changed from "imprisonment" to "temporary imprisonment", which might mean that previously the term was life. In either case, they have an "and" problem that the punishment is "(temporary) imprisonment and a fine ... or either of these two penalties". Presumably the Arabic version is dispositive. Apart from that, the new version of the law identifies the offender as Whoever uses a fraudulent computer network protocol address (IP address) by using a false address or a third-party address by any other means for the purpose of committing a crime or preventing its discovery whereas the old law only said whoever uses a fraudulent computer network protocol address by using a false address or a third-party address by any other means for the purpose of committing a crime or preventing its discovery. Thus the meaning of "computer network protocol address" is defined as being equivalent to "IP address". In other words, there is no substantive change beyond the stiffer penalty. There does not seem to any provision allowing one to ask for exceptions. Article 30 of the underlying law strongly suggests that there is no exception and you should not ask. On a separate note, only Etisalat and Du are authorized to provide telecommunications services, pursuant to Federal Decree Law No. 3/2003. This article from August 24, 2015 also links to a number of related articles indicating that everything is illegal. | The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION. | Generally, terms of service must be prominently displayed. Click-wrapped terms have been found enforceable if the user is required to view them prior to engaging in activities on the website. However, browser-wrapped terms have been found unenforceable if a reasonable user would not be expected to view the terms prior to engaging in a transaction. As an example, when you register an account on the Stack Exchange network, your viewing of legal links, and continuning to use the site after this, is recorded. This could be used as evidence that you agreed to the terms. There are views that the link to the terms should be placed in the upper-left quadrant of the homepage - this will mean the defendant would need to prove that they ignored the link. As for font size, while there are no general requirements per se, it is necessary that they be legible (that is, not excessively small). |
Can you film the police while they search your premises? If the police search your house with a warrant can you film them to ensure they keep to the letter of the warrant? | united-states Yes. The right to film police carrying out their duties is constitutionally protected. See, e.g, ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012) and Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). Of course, one could always imagine some fact pattern in which some other consideration overrode this constitutional right (e.g. filming would have had the effect of destroying evidence that was light sensitive, so the police were using night vision equipment). Related: Boulder, Colorado pays $95,000 to settle the claim of a man arrested for filming the police. | Yes and no. There are numerous cases where criminals, upon breaking in to somewhere, find evidence of a worse crime and notify authorities. This will provide reasonable suspicion enough for entering the scene. Generally, in testimony, Statements against Interest are more believable because a burgler wouldn't admit to breaking and entering if he had a way to explain why he was there in the first place. (Example: Alice breaks into a Warehouse and sees a mutilated body and blood everywhere. Alice immediately stops her theiving ways and calls 911 to let them know about the scene. Whether or not Alice stays, a dead body is enough probable cause to secure the crime scene without warrant. Its in Alice's interests to stay and help as there is trace of her at the scene and she would be pegged as a suspected murderer. If she's picked up and admits to calling the cops, it's good, but staying and helping out after the call will likely get her off on the charges related to the murder.). It could also work if they are persuing one crime and discover evidence of a second unrelated crime. (i.e. Alice robs the factory and gets away. The Factory Foreman calls the cops to investigate the crime scene, which at this point, does not need a warrant. While investigating, the Cops find security footage that Bob, the night guard, killed Chuck, a late night worker, removed his body, and cleaned the scene, all before Alice broke into the factory. The outcome of the case being made against Alice does not affect their need to prosecute Bob, as they obtained that evidence while looking for Alice in a valid investigation, not Bob, thus it is legal). Under these situations a crime that leads to a separate valid crime involving a different party is admissible. There are two possible reasons that the attorney might think this: Fruit of the Poisonous Tree: This is the obvious element... the kids committed a crime with the hopes that the cops would use the evidence found by them in their commission of a crime to get the real bad guys. The attorney parent thinks this is stupid because the kids broke in specifically to do this and thus any evidence is now tossed out of court. This isn't usually the case in how this scenario will play. Generally the cops are more than happy to look at evidence obtained by criminals that points to another crime. In fact, this is how a lot of gang enforcement units and drug enforcement units operate... pick up a small fish and cut a deal for evidence against a bigger fish (turning state's in the criminal lingo, as the witness is becoming State's Evidence to another crime). As long as it's given to the cops as part of legitament evidence seeking, the cops can follow the leads where ever they... er... lead... Chain of Custody: This is probably, if properly thinking, what the attorney parent is thinking that's a bit more probable. Lets say these kids found a dead body with a sword in it and take the sword to the police... this could get dicey as the kids have contaminated the evidence in possible ways that the killer's lawyer could get thrown out. One thing CSI doesn't always show (though there are a few episodes where it comes up, but not many) is that when something is taken in as evidence, it is carefully documented, sealed, and tagged with a check in/check out list. Every time the seal is broken, the person breaking the seal notes the time, date, and reason and when does, reseals it with a new seal, and signs the time and date of the seal again. This is so at trial, the attorneys know exactly who opened up the evidence, what they did, and what possible contaminants were introduced. You even have to sign into a crime scene before you go up to the yellow tape. A good defense lawyer would call into question any evidence from anything the kids handled to get the evidence tossed (i.e. Your honor, these Meddling Kids handled the sword without following the chain of evidence. They even let their dog handle it. They had already harrassed my client earlier today by insunuating that he was involved with a hoaxed paranormal activity to scare people away from the factory. Since they claim they found the sword, but did document it at the scene, we don't know anything about it prior to the police's chain of custody. I motion that the evidence be dismissed.) If this is successful, anything from the sword is now no longer admissible as if the sword had never been found (including blood of the victim on the blade and finger prints of the suspect on the hilt)... in effect the evidence was prossessed as best the police could but the veracity of the story of it's discovery is too questionable to be considered. The defense does not have to be right, he just has to show there could be another explanation for the sword and the evidence linking his client to the crime committed by it. In short, without specific details, the attorney parent could be right or could be wrong, or more humorously, right, but for the wrong reasons. Edit: U.S. only. See other answers for other jurisdictions. | Absolutely not. You have to use the legal system, whereby the sheriff is the one who uses force if it is necessary and ordered by the court. You can file an action at your local courthouse. If you want to do this self-help style, figure out how to file a petition, and figure out what you are petitioning the court to do. First off, of course, you need to figure out what you really want. For example, do you want a squatter to leave your apparently abandoned house; do you want a fence removed from your property; or do you just want to be sure that he can't claim possession of a chunk of your land in 3 more years (but the fence doesn't bother you)? Since you're apparently talking about removing a person from your property, you might start by calling the police. If this is a former tenant as opposed to a stranger who broke in, don't bother (police don't get into civil matters until the court tells them to), just start the appropriate legal process. You might be filing an unlawful detainer action, but it would be a slower eviction if the person is a tenant. | In the US, police do not put a person under house arrest, instead, the courts do, as an alternative to standard imprisonment (either awaiting trial, or serving their sentence). The police are not involved at all; the courts cannot be sued for lenient sentencing. If a person leaves their house (even to buy a bottle of milk), they will have violated the terms of their more lenient sentence, and will be arrested and sent to regular jail. Generally, police are not liable for damages, especially when they fail to be omnipotent in their efforts to prevent others from doing wrong. | It depends on what you mean by "clean." The police have probably made a record of the incident and included your name. If you're in the United States, the odds are that the public has access to that record under a freedom of information law. But that's a lot of work that few people will bother with. You haven't been arrested or convicted, so the incident probably wouldn't show up if anyone did a background check, if that's what you're worried about. | 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. | This recently came up in a local PA homeowner association. Legally they own the roads in their development, but they have erected stop signs to make it clear who has the right of way and asked the township police to enforce them. A resident challenged the right of the police to enforce traffic laws on private property, but lost his appeal (albeit at the municipal level). The judge explained that the residents and any visitors had a reasonable expectation that the traffic signs would be obeyed, and that therefore violating them was just as dangerous as violating them on public roads, and that the same law and penalties would therefore be applied. | In general in the US, anyone may photograph anyone else if they are all in a public place, although in some states such a photo may not be used commercially without permission, which must often be paid for and may be refused. It is unusual for police to photograph people on the street, but they might want to document who was present at a particular place and time. They can do so, but I am not at all sure that they can prevent a person from covering his or her face, or turning his or her back, or charge a person who does so with obstruction. I don't think so. Under some circumstances in the US police may ask a person for identification, and may charge a person who refuses to provide it. This varied from one state to another, and usually depends on the specific circumstances. (If a person is driving an automobile, police may demand to see a driver's license, for example.) Unless a police officer puts a person under arrest, the officer has no general right to control that person's actions, beyond instructing the person not to interfere with ongoing police work. I do not think an obstruction charge would hold up for covering one's face or turning away in the absence of an arrest. |
Is GDPR consent as part of Terms & Conditions valid? In the terms and conditions of the kite festival consent for use of footage of the audience is written into the Terms & Conditions: 5.c: Ticket Holders consent to being photographed, filmed and sound recorded as an audience without payment, and to their image being exploited in any and all media for any purpose at any time throughout the world by the Promoters who shall own the copyright in all such recordings. If you attend the Event with a child under 16 you give the foregoing your express consent on their behalf. Note that consent is implicit, with no instructions given for withdrawal of consent. From the ICO site: What is valid consent? Consent must be freely given; this means giving people genuine ongoing choice and control over how you use their data. Consent should be obvious and require a positive action to opt in. Consent requests must be prominent, unbundled from other terms and conditions, concise and easy to understand, and user-friendly. Consent must specifically cover the controller’s name, the purposes of the processing and the types of processing activity. Explicit consent must be expressly confirmed in words, rather than by any other positive action. This seems to miss most if not all of these points (note "the Promoters" are not specifically defined in that document, but is "U-Live Portfolio Ltd and any associated promoter(s) of the Event"). Is this legal consent? I assume that if they used the 9.b. right to refuse you entry after you withdrew consent that would be illegal? In the privacy policy they detail the results of withdrawing consent for marketing communications but not for this photography and recording. | Consent in the GDPR sense? No. Consent in the more general sense of “agreement”? Sure. Under the GDPR, consent is only one of many legal bases for processing personal data. Consent requires an unambiguous indication of the data subject's wishes through a clear statement or affirmative action. Thus, consent cannot be “hidden” in another document – it would be ambiguous whether the data subject just wanted to agree to boilerplate terms of service or specifically consent to a particular purpose of processing. Indeed, Art 7(2) GDPR explicitly requires that “the request for consent shall be presented in a manner which is clearly distinguishable from the other matters”. Another legal basis is Art 6(1)(f) legitimate interest. A legitimate interest requires some interest that outweighs the data subject's rights and interests. This balancing test must consider whether the data subject can reasonably expect the processing to occur, given the data subject's relationship with the data controller. I would argue that an event venue does have a legitimate interest to film and photograph events, and that this interest outweighs the data subject's rights and interests at least for larger shots, but not necessarily for close-ups, portraits, etc. The event participants can reasonably expect the audience to be filmed and photographed. Indeed, the linked privacy policy (linked just after the part that you quoted) is very thorough and explains in detail what is happening. The table starting on page 9 describes the purposes of processing, the data being used for that purpose, and the legal basis for that purpose. Here, the relevant entry is: Purpose: Photographs of crowds at our festivals and/or events Type of data: (a) Identity Legal basis: (a) Necessary for our legitimate interests (to capture footage of artists performing at our festivals and events which feature crowd or to record images of our festivals and events for showreel and marketing purposes) This means: they are not asking for consent in the GDPR sense. They are relying on a “legitimate interest” instead. They have to inform you in advance about the processing of personal data – which they evidently did by providing the privacy notice – but they don't have to ask you. So what is that consent about then? The consent you quoted is more about personality rights: you would consent to “being photographed, filmed and sound recorded as an audience without payment, and to [your] image being exploited in any and all media for any purpose at any time throughout the world”. This is essentially a model release. | If the data controller has “reasonable doubts concerning the identity of the natural person making the request”, then “the controller may request the provision of additional information necessary to confirm the identity of the data subject” (Art 12(6) GDPR). Until the data subject provides this information, the request is paused. But what are reasonable doubts, and what additional information can the controller request? The GDPR itself provides no clear guidelines, though general principles apply – the additional information must be necessary, adequate, and proportionate for the identity conformation purpose. The controller's obligation to comply with access requests must be balanced with the controller's obligation to ensure the security of data by rejecting invalid requests. Just accepting any request without any verification would also be a breach of the GDPR. For example: If the company identifies data subjects by email address, then demonstrating control over the email address would be an appropriate verification step. But just mentioning the email address would not be enough since it could be someone else's email address. If the company provides a website where data subjects have created user accounts, then being able to log in to the account would be an appropriate verification step. In these examples, asking e.g. for government photo ID would not be appropriate because that doesn't help strengthen the link between the person making the request and the personal data being processed. Such data collection would be disproportionate and unnecessary. In contrast, if you walk into a bank and ask for a copy of your data, it would be entirely appropriate for them to ask for government ID because (a) the higher general risks warrant stronger checks, and (b) such ID will help confirm that the person making the request is indeed the proper account holder. The bank will also have been legally required to request ID when the account was originally opened, so that asking for ID as an identity verification measure during this later request won't involve collection of more data than they already have. (These examples were made up by me and are not official, but read on.) The EDPB has issued draft guidelines on the right of access 01/2022, which also discuss the issue of additional information for identity verification in sections 3.2 and 3.3. In particular, paragraphs 73-78 talk about IDs: 73. It should be emphasised that using a copy of an identity document as a part of the authentication process creates a risk for the security of personal data and may lead to unauthorised or unlawful processing, and as such it should be considered inappropriate, unless it is strictly necessary, suitable, and in line with national law. […] it is also important to note that identification by means of an identity card does not necessarily help in the online context (e.g. with the use of pseudonyms) […]. 75. In any case, information on the ID that is not necessary for confirming the identity of the data subject, […] may be blackened or hidden by the data subject before submitting it to the controller, except where national legislation requires a full unredacted copy of the identity card (see para. 77 below). […] 76. […] Example: The user Ms. Y has created an account in the online store, providing her e-mail and username. Subsequently, the account owner asks the controller for information whether it processes their personal data, and if so, asks for access to them within the scope indicated in Art. 15. The controller requests the ID of the person making request to confirm her identity. The controller's action in this case is disproportionate and leads to unnecessary data collection. […] Example: A bank customer, Mr. Y,, plans to get a consumer credit. For this purpose, Mr. Y goes to a bank branch to obtain information, including his personal data, necessary for the assessment of his creditworthiness. To verify the data subject’s identity, the consultant asks for notarised certification of his identity to be able to provide him with the required information. The controller should not require notarised confirmation of identity, unless it is strictly necessary, suitable and in line with the national law […]. Such practice exposes the requesting persons to additional costs and imposes an excessive burden on the data subjects, hampering the exercise of their right of access. 77. Without prejudice to the above general principles, under certain circumstances, verification on the basis of an ID may be a justified and proportionate measure, for example for entities processing special categories of personal data or undertaking data processing which may pose a risk for data subject (e.g. medical or health information). However, at the same time, it should be borne in mind that certain national provisions provide for restrictions on the processing of data contained in public documents, including documents confirming the identity of a person (also on the basis of Art. 87 GDPR). Restrictions on the processing of data from these documents may relate in particular to the scanning or photocopying of ID cards or processing of official personal identification numbers. To summarize: controllers can request IDs only in comparatively niche scenarios, and must then take additional safeguards to protect the sensitive document (e.g. instructing the data subject to redact parts of the ID, not making copies, and immediately deleting the ID after successful verification). A lot here comes down to national laws, which may explicitly require or forbid use of the ID in this context. The EDPB guidelines are not binding or normative, especially since this guidance is still in the public consultation phase. However, the guidelines present an overall consensus of the national data protection authorities in the EU, and the guidelines are regularly cited by courts. In practice, many controllers do ask for disproportionate amounts of data. Sometimes this seems to be an attempt to discourage data subject requests, which would clearly be non-compliant. In some cases, this is due to a narrow interpretation of “reasonable doubts” in which they try to eliminate any doubt about the identity. If the data subject and data controller cannot agree on a suitable identity verification process, then the data subject can: Art 77: lodge a complaint with a data protection authority, and/or Art 79: sue the data controller in court, both for compliance (fulfilling the request) and for compensation (if damages were suffered). It is worth noting that the data controller is responsible for being able to demonstrate compliance (Art 5(2) accountability principle), such as demonstrating the apparent reasonable doubts to a supervisory authority or to a court. When the controller requests ID, the controller has the burden of proof to show that this is compliant. | It is absolutely not the case that Providers are not allowed to keep PII without consent. Article 6 of the GDPR identifies six possible lawful bases for processing personal information. These are: (a) the data subject has given consent ... (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. If a person requests services from an online service provider, basis (b) will apply, at least to some information. If there is evidence of criminal activity, basis (c) may well apply, as it also will for much routine record keeping. Any in many such cases, basis (e) or (f) will also apply. In short, article 6 does not create a "haven for online criminals/hackers". In a comment on another answer the OP writes: The offender has the right to not be identifiable and he can't be denied this right That is simply not correct. Nothing in the GDPR says anything of the sort. It is true that consent may not be forced, but if a user requests a service that service may require the user to identify him- or herself. For example, one cannot order physical goods without giving a name and a shipping address. And the provider may retain PI and even PII when it has a "legitimate interest" in doing so, although if challenged it must justify that legitimate interest. | The "Privacy Rule" (45 CFR Part 160 and Part 164, Subparts A, E) don't forbid this. Sect. 164.502 states the general rule: (a) Standard. A covered entity or business associate may not use or disclose protected health information, except as permitted or required by this subpart or by subpart C of part 160 of this subchapter. "Health information" is defnes in part 160 as any information, including genetic information, whether oral or recorded in any form or medium, that: (1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual. Your picture would not constitute health information (and anyhow, they are allowed to gather health information, just not freely disseminate it – the pictures on the wall were presumably with permission). There is no general law (which would be state law) against taking a person's picture (though commercially exploiting someone's picture would require permission, via the concept of personality rights), and it is directly required in a number of instances (for identification purposes – school ID, driver's license, passport, voting in some states). It is an unusual requirement and since they scanned your driver's license it is especially inexplicable. Assuming that this is just a story they tell all patients because they want before and after pictures (which you would have to consent to, if you didn't already in one of those "sign here" flurries), saying that this is for "security purposes" would be untrue, but I don't think it's actually illegal. Taking but not using a photo would not cause you harm, so if you had let them take the picture, there would not be a basis for suing. If they use it for advertising without permission, that would be a problem. | The pragmatic answer is to just ask the data subject what they would like to have erased. The GDPR's right to erasure DOES NOT requires that you “delete all their records in [your] database”. Compared to other GDPR rights, it has a quite limited scope. It is necessary that one ground for erasure in Art 17(1) applies, and none of the exceptions in Art 17(3) apply. For example, you are allowed to retain any data that you need to fulfill a legal obligation (exception in Art 17(3)(b)), such as an obligation to keep financial records for a number of years. In the case of providing course completion certificates, I would assume that your legal basis for providing this service is a contract with the data subject. Contracts directly with the data subject can serve as a legal basis for processing per Art 6(1)(b). It doesn't matter if the contract was paid (consideration is not a necessary element of a contract in civil law systems). As long as this contract is in force, there are no Art 17(1) grounds for erasure. But if the contract is terminated, Art 17(1)(a) would apply: “the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed”. So the data subject could release you from your contractual obligation to provide the certificate verification service, and then require you to delete any personal data in connection with that service. In the unlikely case that you are using a different legal basis for hosting the certificate service: legal basis applicable? grounds for deletion Art 6(1)(a) consent maybe Art 17(1)(b): consent can always be withdrawn Art 6(1)(b) contract yes (see discussion) when the contract is terminated Art 6(1)(c) legal obligation unlikely per legal requirements Art 6(1)(d) vital interests no Art 6(1)(e) public interest unlikely per legal requirements Art 6(1)(f) legitimate interest maybe Art 17(1)(c): objection to further processing per Art 21(2) For all of these legal bases, it is the case that once the legal basis expires, then Art 17(1)(a) provides grounds for erasure. In fact, proactive erasure (without waiting for a data subject request) may be required in line with the Art 5(1)(b) purpose limitation and Art 5(1)(e) storage limitation principles. To quickly summarize all Art 17(1) grounds for deletion: Art 17(1)(a): data is no longer necessary Art 17(1)(b): consent withdrawn (only if Art 6(1)(a) consent was used as legal basis) Art 17(1)(c): objection to further processing (only if Art 6(1)(f) legitimate interest was used as legal basis) Art 17(1)(d): unlawful processing always merits erasure Art 17(1)(e): erasure is required by law Art 17(1)(f): special right to erasure for children Note that it is, in principle, possible to provide certificates without storing personal data. This could make it unnecessary to think about data subject rights like erasure. For example, you could provide a certificate to users. The certificate contains personal data, and you do not store a copy of the certificate. But you could use cryptographic signatures to prevent forgery of the certificate. The signature can be verified without having to store personal data. If you are familiar with web development, the same technique is used for JWT tokens: the data in the token is signed by a secret key so that it can be verified whether a token (and the data in the token) was created validly, without having to store a copy of the data in the token. Limitations of this approach are well-known, such as making it difficult or impossible to revoke certificates. In practice, such data-minimization techniques are overkill. The GDPR only requires appropriate security measures. If you have a legal basis (such as a contractual obligation with the data subject) then it is perfectly fine to store a certificate with personal data in your service. The GDPR obligations stemming from such a processing activity are not particularly onerous. | Per GDPR Art 79, you can sue data controllers if you consider your rights to have been violated. Where you have suffered damages due to GDPR infringements, you also have a right to compensation per Art 82. However, your rights may not have been violate as far as the GDPR is concerned. Under the GDPR any kind of personal data processing needs a clear purpose, and that purpose needs a legal basis. One possible legal basis is consent, but there also are others (such as legitimate interest). Just because you didn't consent doesn't mean that your rights have been violated. Where processing is based on legitimate interest, you can object to that processing of your personal data – but your rights must be balanced against that legitimate interest (Art 21). If your friends post a photo and you only appear in the background, your friends' legitimate interest to post that photo likely outweighs your rights. In practice, suing Facebook because of GDPR infringement is not a sensible way to achieve the outcomes that you likely want. First, this is expensive. Second, it is arguable whether Facebook or your friends should be the defendant. Third, removal of existing data won't prevent the processing of new data in the future. It would be more sensible to treat this as an interpersonal rather than a legal problem, and to talk with your friends so that they don't include you in their photos that they would like to share online. I've focussed on photos because their situation is fairly clear. Voice snippets might not count as personal data when you are not identifiable in them. Personal assistant apps should not be listening continuously, but only start recording when a wake-word is recognized. | There are various tangential ways in which this could be illegal, for example if your subjects are celebrities, you take a picture of them and commercially exploit it without permission in a product endorsement. Leaving aside such fringe cases, in the US, the legal right to privacy comes about, at the first cut, by premise trespass law. If the proprietor tells you to go away, you have to go away; if the proprietor tells you that you cannot take pictures, you cannot take pictures (your right to enter is conditional). Neither of those circumstances holds in your case. There are other tort-law bases for a right to privacy: numerous privacy laws regarding privacy and financial transactions (not relevant here), the aforementioned right of publicity (commercial exploitation of likeness), false light (like defamation, about creating a false impression – I don't see what false information is conveyed by a photo). There is also public disclosure of private fact, but that cat is out of the bag because the subject has self-disclosed the supposedly offensive fact revealed by the picture by eating in public. Intrusion of solitude and seclusion does not exist in the circumstance, since the subject is eating in public where everybody can see: there is no reasonable expectation of privacy. This page sums us Virginia law. The main take-away from that is that there is no common law action for privacy in Virginia, and only an action for unauthorized used of likeness or name. | 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. |
Does HIPAA apply to individuals? Does HIPAA privacy protection apply to an individual who has no relation to the healthcare field? For example, my neighbor drops his prescription pill bottle on the sidewalk outside his house. I pick it up and return it. Would me telling someone else about his prescription be a HIPAA violation or just a jerk move? | It would merely be a "jerk move". HIPAA only applies to "covered entities": Healthcare Providers Health Plans Healthcare Clearing Houses (i.e. Paying for your health care) Business Associates of the Above) Source: CDC page on HIPAA | A trust, revocable or irrevocable, does not protect the estate from claims by creditors. Under ORS 115.125(1)(k), the Department of Human Services or the Oregon Health Authority has a claim against the estate, behind the claim for "the state’s monthly contribution to the federal government to defray the costs of outpatient prescription drug coverage provided to a person who is eligible for Medicare Part D prescription drug coverage and who receives benefits under the state medical assistance program or Title XIX of the Social Security Act" (which is item (j)) and ahead of only the claim by the Department of Corrections for care and maintenance of any decedent who was at a state institution – that one is dead-last in the list of statutorily-listed claims. | The primary legal question is whether the resident (tenant) has breached a duty of care. There are all sorts of laws establishing duties of care, such as between doctor and patient, which may be created by a legislature or may be part of common law tradition. There is a duty of care imposed on a landlord w.r.t. the tenant, requiring that the premise be "secure", therefore a landlord might easily be held liable if the main door into the building was not locked. This duty is a specific instance of a general duty from tradesman/businessman to customer. As far as I can determine, there is no such statutory duty imposed on tenants in Washington state, and none from case law being revealed by a few cursory searches. In order to be subsumed under general "everybody has a duty to everybody else" law, the damage would have to be foreseeable. It is said that "If something is foreseeable, it is a probable and predictable consequence of the defendant’s negligent actions or inaction". This mean that a reasonable person would have known that, under the circumstances, the damage is likely to result. Circumstances vary quite a bit, and there is no general rule about holding the door open for another person. If there is abundant signage reminding tenants to never ever let in a stranger no matter that their excuse and/or if the premise is in a crime war-zone, the outcome is more likely to be considered to be foreseeable. | It is legal for you to publicly distribute your medical records, and it is legal for you to publicly distribute your bills. Defamation would be a concern only if you make a false statement that does harm to someone. A medical bill is a statement made by someone else (in both senses of "statement"). | Under 45 CFR 164.402 a "breach" is the acquisition, access, use, or disclosure of protected health information in a manner not permitted under subpart E of this part which compromises the security or privacy of the protected health information. Disclosing PHI to random people is not permitted under subpart E. Then then allow that it can be deemed to not be a breach if they can "demonstrate[] that there is a low probability that the protected health information has been compromised based on a risk assessment of certain factors – there isn't any clear yes/no rule as to how you could say that disclosing PHI is not a breach. If they discover a breach, they must notify the affected individual. One ploy would be for them to stick their heads in the sand and be careful to not discover: but §164.404(2) says A covered entity shall be deemed to have knowledge of a breach if such breach is known, or by exercising reasonable diligence would have been known, to any person, other than the person committing the breach, who is a workforce member or agent of the covered entity So if, for example, they had been told that person X has moved, a reasonably diligent person would know that sending PHI to the old address will result in a breach. The Sec'y of HHS must also be notified of the breach, though this can go in the annual report if the breach involves fewer than 500 people. The affected individual can also file a complaint with HHS. | There is no general law requiring a doctor to report to the government that they have given medical treatment. On the contrary, there is a federal rule (the "Privacy Rule") that somewhat requires keeping medical information private. There may be certain instances where a report must be made, such as the obligation to report gunshot wounds or suspected child abuse. There could be entanglements regarding use of drugs that require a prescription, where there is a required paper trail. | You can read about the obligation to access public records under Kentucky law here. This page is the Louisville PD' statement about what is available. They state that "Some items have been redacted, blurred or withheld for privacy or legal reasons", noting for example that the statute "exempts from disclosure under the Open Records Act information that, if disclosed, would create an unwarranted invasion of personal privacy. Any further reference to redactions for personal privacy /concerns is also made pursuant to this law and/or HIPAA". The plaintiff's filing is not available and the police department has not commented, so we don't know exactly what is being demanded. However, the PD has not claimed that they are withholding the requested records for legal reasons, and the media alleges that the suit alleges that the PD lied about the existence of said records (note the double allegation). Body-worn cameras are specifically included here, and this part says that you can sue in county court. FOIA does not apply, because the Lousiville PD is not an agency of the US government. | BAD idea It is one thing to upload the phonebook and associated pictures for use of the owner of the phonebook. It isn't a fair use of the phonebook pictures - and you might not have a license anyway, as some people associate photos with numbers that they don't have a license to associate with anyway. But what if instead of a photo of the person, the first photo someone associated with the person is a photo of something like... crack cocaine, a photo of someone in a very compromising situation, just genitals, or some other thing that is just as tasteless or possibly criminal to share? In that case, your company is possibly committing defamation, and in case sharing or possessing of the image itself is illegal, your company is now the actor and liable. Depending on the content of the picture, distribution of pornographic material (possibly even underage material of that sort) could be up that alley just as much as hate speech through symbols, usage of banned symbols (such as swastikas in Gernamy) and many many others. |
Panel of Judges in Supreme Court - Odd number? In Supreme Court, the panel of judges will always be a odd number? 3,5,7,9 so the decision in terms of votes count verdict will always outcome a result and not a tie? | The UK Supreme Court (as you tagged in the question) uses an odd number for this exact reason. A recent case, Attorney General v Crosland [2021] UKSC 58, further explains: it is a very common feature of appeals in the UK generally that the appellate court consists of a larger panel than the court appealed from. It not infrequently happens that a party to an appeal to the Supreme Court wishes the court to depart from an earlier decision of the Supreme Court or of the House of Lords. In such a case the practice is for the appeal to be heard by an enlarged panel of seven or more justices, precisely to clothe it with that greater authority The statute establishing this Court provides: The Supreme Court is duly constituted in any proceedings only if all of the following conditions are met— (a) the Court consists of an uneven number of judges; (b) the Court consists of at least three judges; (c) more than half of those judges are permanent judges. (with the possibility of some deviation in special circumstances). This practice was previously followed in the House of Lords, before being made statutory when the Supreme Court was formed. The UK court does not sit en banc, partly because there are twelve permanent judges and that is an even number, and partly because the legal tradition hasn't held it to be worthwhile. An exceptional case was R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, heard by eleven judges - a record! - which happened to be the entire Supreme Court at the time, since there was one vacancy. A panel of nine was used in Attorney General's Reference (No. 2 of 2001) [2003] UKHL 68, for the first time since R v Ball [1911] AC 47. Smaller numbers are more typical, such as five. For the Supreme Court of the United States, there are nine judges but they do not use panels. It is fairly common for some judges to recuse themselves because they had been involved with proceedings at a lower stage, or if there is a vacancy, and so there are cases where there are an even number of judges actually involved. The US court also has a practice of fairly complex patterns of concurring and dissenting opinions, with justices potentially joining more than one opinion, so it can be subtle to identify where the majority position really lies. It is therefore possible for there to be a tie. If there is a tie on appeal, then the lower court's decision stands, without precedential effect. For matters within the original jurisdiction of the Supreme Court, there is no consensus on what is meant to happen - see What happens if the US Supreme Court ties 4-4? for more. | Yes. Juries aren't terribly accurate. There is an irreducible chance that no matter how clear the outcome should be that the jury will get it wrong. Based upon a review of the academic literature on wrongful convictions and inaccurate acquittals, I generally tell my clients that this is about 10%. Many people think that this is a low end estimate. Also, sometimes a jury will acquit a defendant in a case where they think that the defendant was actually legally guilty because of extraordinary circumstances, and so the jury will disregard the law and acquit. This practice is called "jury nullification." And, as other answers have noted, sometimes the prosecution or the judicial system screws up for reasons that are unforeseeable, after a not guilty plea, in a way that makes proving your guilt difficult or impossible. Basically, if you "roll the dice" there is some non-zero chance you will be acquitted, while if you plead guilty, there is none. Also, sometimes court decisions will change the law in way favorable to you after the trial, and as long as your case is still on direct appeal from the conviction, you can benefit from those changes in the law, which you cannot if you simply plead guilty without any concessions. Likewise, if you are innocent and the evidence is currently strongly against you, but you wish to preserve the ability to later attack the conviction based upon future newly discovered evidence, not pleading guilty is generally necessary to preserve that option. Another circumstance where going to trial but losing can still be worth it, is where there are extenuating circumstances that make your conduct understandable, even if it is not a legally valid defense. Getting these facts in front of the judge in a fuller fashion, as a trial can make possible, can convince the judge that while you are legally guilty, that you deserve leniency. Going to trial typically results in a longer sentence, even without a plea bargain, however, so going forward with a hopeless trial is rarely a good move. | The decision of a court consists of several things: The orders made A summary of the evidence The judge's reasoning from the evidence to their conclusions of what the facts of the case are The judge's reasoning from the evidence to their conclusions of what the law applying to those facts is The judge's reasoning from those findings of facts and law to the orders that were made (ratio decidendi) Reasoning on how things might have been decided otherwise (or the same way) if the facts or the law were different (obiter dicta). We hope that the judge is articulate enough that we can tell which is which. Where there is more than one judge there is more than one opinion. However, there is still ratio decidendi and obiter dicta across all the opinions. Typically, a dissenting judge disagrees with the ratio decidendi in whole or part and his reasoning about that is obiter dicta. The ratio decidendi – "the point in a case that determines the judgement" or "the principle that the case establishes" – creates binding precedent. The obiter dicta creates persuasive precedent. A binding precedent is just that – it binds the decisions of lower ranked courts in the hierarchy. If the facts of the current case match the facts of the precedent then the judge must follow the precedent even if they disagree with it – indeed there are many decisions where the judge expresses their disagreement with the precedent in no uncertain terms. In addition, there can be conflicting precedent, for example, where the High Court of Australia has made a decision on a piece of legislation that conflicts with a decision of the Supreme Court of NSW on an essentially similar provision in a different Act. A wise judge in such a situation should do what McDougal J did in Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 and issue orders referring it to a court that can overturn one (or both) of the precedents. A persuasive precedent can influence the decisions of other courts – they are an authority a judge can look to in formulating their reasons but they are free to consider and reject them even if the facts match. Obiter dicta from same level or higher courts in the hierarchy is persuasive precedent as is ratio decidendi and obiter dicta from same level courts and courts in other jurisdictions. | County Courts do not have official neutral citations and are placed in the Miscellaneous category by the British and Irish Legal Information Institute, who nowadays acts as the unofficial case reporter in the UK. See https://www.bailii.org/bailii/citation.html for a list of courts whose proceedings have official neutral citations. The series number appears to be decided by BAILII, probably based on the time it publishes a case. | A majority of the justices support the first opinion, written by Johnson, so Madsen (writing a separate concurring opinion) is referring to the previous opinion. "at 12" means "on p. 12" (special law talk), so at the top of p. 12 you see the quoted text. "n. 9" means "footnote number 9" (which is on p. 12). | How deterministic is the legal system? It depends. And less than we might wish. It depends on the case. How complex is the fact pattern? How strong is the evidence? How clear is the law? How compelling are the legal precedents? Questions of that nature. The only generalization I might make would be that "lower level" cases seem more deterministic than "higher level" cases. By higher level, I mean those heard by a supreme court making constitutional decisions. Here is a web site that has created a prediction market out of supreme court cases. Many have written on this topic. Read this answer. It is an excellent treatise on the subjectivity of the legal system. Written by a real attorney. Read this answer too. My advice: If you seek a deterministic system, don't look to the legal one. | The article "Enforcement of Religious Courts' Judgments Under Israeli Law" (Asher Maoz, Journal of Church and State 1991) is useful in understanding the legal underpinnings of this question. The beginning point is the Palestine Order in Council 1922 (this is from the UK Privy Council), where religion-based courts are established, so sect. 52 is about Muslim courts, 53 (later repealed) is about Jewish courts and 54 is about Christian courts. Section 53 was replaced with Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, stating that marriage between Jews follows Jewish law, and says that rabbinical court has exclusive jurisdiction. Article 6 of that law allows a district court enforce a final judgment by a rabbinical court by imprisonment. Muslim courts similarly have exclusive jurisdiction over Muslims, though it is wider (it pertains to all matters, not just marriage). Actual enforcement apparently involves the Chief Execution Officer. Basic Law 15 gives the Supreme Court supervisory power over all courts, including religious courts. So rabbinical courts don't have unfettered power to do whatever they want (under Jewish law), but there is direct state sanction of imprisonment as a penalty for not obeying a rabbinical court decision, there is non-religious execution of court orders, and there is secular supervision. Since civil marriage is non-existent in Israel, there is no choice (if you want to have the wedding in Israel) but to go to the recognized religious authorities, which seems to make Cyprus a popular wedding venue. A Roman Catholic divorce is not possible in Israel, a Muslim one is, and I really cannot tell about the various Orthodox Christian churches. | A jury verdict does not have any effect as legal precedent. Only appellate court opinions (that are not mere de novo bench trials of a court not of record) have effect as legal precedent outside the dealings of the actual parties to the case in future litigation with each other. Even then, an appellate court ruling is binding precedent only over the courts inferior to the appellate court issuing the opinion. |
Why there isn't any law resulting from the Algorithmic Accountability Act of 2019? It was stated that no later than 2 years, law must be created according to this bill. I can't find the law anywhere. Talking about this bill: H.R.2231 - Algorithmic Accountability Act of 2019 | The bill was never passed. According to the list of all actions on Congress.gov, the bill was referred to the Subcommittee on Consumer Protection and Commerce in April 2019. Evidently, that subcommittee never did anything further with it. The bill was never voted on by either the House or the Senate. | Algorithms are not subject to copyright. A particular implementation can be copyrighted, but an algorithm itself can't be copyrighted. Someone re-implementing the algorithm with their own code has done nothing to give you copyright claims against their work, and is not bound by any software license you use. That's what patents are for. | By default a new US Federal law is effective as soon as it is enacted. That is, when the President signs it, when the 10 days for approval expire without the President vetoing it, or on the date when the second of the houses of Congress votes to override a veto. However, in modern usage, many, perhaps most, statutes specify as pone of their provisions an effective date some time after the date of enactment, in some cases several years later. If such a date is specified, that is the legal date. All bills and the actions enacting them are recorded in the Congressional Record, which is a public document, published on a regular basis. They are generally included in the next revision of the USC (united States Code) and the USCA (United States Code, Annotated). But these publications are generally well after the date of enactment. The Thomson Reuters Perspectives: Teaching Legal Research and Writing (winter 2000) “HOW Can I Tell the Effective Date of a Federal Statute?” by Barbara Bintliff says: The generally applicable rule is easy to state: a federal statute usually takes effect on the date of its enactment,3 which is itself determined by when the last step necessary for the statute’s enactment occurred. Most of the time the last step in the enactment process is the president’s signature, and this date, therefore, becomes the date of effectiveness for most federal statutes. However, there are exceptions to the general rule. For instance, sometimes the last step occurs when Congress overrides the president’s veto, or when the bill is allowed to become law without a presidential signature. And sometimes a later date is specified by the terms of the statute itself. The article geos on to say: The date of enactment is most easily located by consulting the parenthetical information provided after every statutory section included in the print and online versions of the United States Code (USC), the United States Code Annotated® (USCA®), and the United States Code Service (USCS).5 The parenthetical is variously called a “source note,” “statutory authority,” “statutory history,” “history,” “source credit,” or “credit.” In the print versions, the parenthetical follows the statutory section with nothing in between the statutory text and the source note. In the primary online versions, it is labeled “credit” (in USCA on Westlaw) or “history” (in USCS on LEXIS-NEXIS). The credit has been included with federal statutes since they were first codified in the Revised Statutes of 1874 and is an official part of the statute. "Enactment of a Law - Learn About the Legislative Process" from Congress.gov describes the procsss also, saying: If the president does approve it, he signs the bill, giving the date, and transmits this information by messenger to the Senate or the House, as the case might be. In the case of revenue and tariff bills, the hour of approval is usually indicated. The enrolled bill is delivered to the archivist of the U.S., who designates it as a public or private law, depending upon its purpose, and gives it a number. Public and private laws are numbered separately and serially. An official copy is sent to Government Printing Office to be used in making the so-called slip law print. ... If a bill which has been vetoed is passed upon reconsideration by the first House by the required two-thirds vote, an endorsement to this effect is made on the back of the bill, and it is then transmitted, together with the accompanying message, to the second House for its action thereon. If likewise reconsidered and passed by that body, a similar endorsement is made thereon. The bill, which has thereby been enacted into law, is not again presented to the president, but is delivered to the Administrator of the General Services Administration for deposit in the Archives, and is printed, together with the attestations of the secretary of the Senate and the clerk of the House of its passage over the president's veto. | What you're talking about is called black-box reverse engineering. It can be done, and as long as you are meticulous in your record keeping the fact that it has been done should be an appropriate defence against copyright infringement. But that doesn't help against patent claims - while in copyright cases the fact that code has or has not been directly copied is critical, in patent cases it its irrelevant: if you use a patented method, it's a violation. You therefore will need to be careful about any patents that may have been issued to the original author, as well as avoiding copying. | The lack of a copyright notice is irrelevant, what matters is whether permission is granted. The material cannot be copied, except if the copyright holder grants you permission to copy. However, you might be able to create something legal and satisfactory on your own, because the underlying ideas are not protected. By way of analogy, you cannot copy the Turbo Pascal Numeric Methods library without permission, but you can study the logic of a module and write your own FFT routine. The status of something as "declaring code" is entirely irrelevant to the court's decision in Google v. Oracle. What is relevant to the court's finding of fair use is that the content constituted 0.4 percent of the entire API, and the fact that the copied lines of code are inextricably bound to other lines of code that are accessed by programmers, allowing programmers to bring their skills to a new environment. The court found that he amount of copying was tethered to a valid, and transformative, purpose. | The liability shield is the big one, and it can't be achieved with a contract. Just because the contract says you're not liable, that doesn't make it true. If I sign a contract with my friend that says "Nate Eldredge is hereby the King of France", that won't make me the king, nor will it force anyone except maybe my friend to acknowledge me as the king. By its nature, a contract can only bind the parties to the contract, and has no effect on the rights of anyone else. Suppose, then, that Alice and Bob agree to start a pizza delivery business, using a contract like you suggest. Their delivery car crashes, injuring Carol, a bystander, who incurs medical bills that exceed the assets of the business. Carol decides to sue Alice and Bob personally. Sure, Alice and Bob have a contract, and maybe it prevents them from suing each other, but it certainly doesn't prevent Carol from suing them; Carol never signed it. So Carol can still go after Alice and Bob's personal assets. Thus contract law cannot give them a liability shield. However, the government can, since it makes the laws about who can sue whom under what circumstances. And it has made laws saying that Alice and Bob can be protected from such suits, but only if they form a company according to the process that the law sets forth. So that's what they have to do. | The law works in the opposite direction of what you seem to be imagining. State courts generally have jurisdiction to hear lawsuits based on federal law, even without "authorization" from Congress. It is therefore perfectly normal to see lawsuits under Section 1983 , the Privacy Protection Act, or the Magnuson-Moss Consumer Protection Act being litigated in state court. Instead, when Congress authorizes a private right of action, it includes explicit language when it does not want cases heard in state court. This is the case with copyright, patent, and bankruptcy litigation, for example. | The Copyright Office has determined, in chapter 300 of the Compendium of U.S. Copyright Office Practices, on page 36, that the copyright bar extends to works created by the President; Congress; the federal judiciary; federal departments, agencies, boards, bureaus, or commissions; or any other officer or employee of the U.S. federal government while acting within the course of his or her official duties. So the Senator is a US employee for copyright purposes, at least according to the US Copyright Office. Technically, this is interpretation rather than law, and in theory a court might disagree, but if anyone is qualified to speak on this issue, it's the Copyright Office. In my opinion, it is most reasonable to assume that the Copyright Office is correct in their interpretation unless there is case law directly contradicting them. The only question is whether the letter was created by the Senator "while acting within the course of his or her official duties." I'm not aware of any case law suggesting that constituent building is or is not an "official duty" of a US Senator, and there are reasonable arguments to be made in both directions. On the one hand, the letter is clearly beyond the scope of Congress's lawmaking and oversight Constitutional functions. On the other, the office of Senator is an inherently political office, and a case can be made that campaigning for reelection is part of the job. Perhaps surprisingly, that question was extensively litigated during E. Jean Carroll's first defamation lawsuit against Donald Trump, because Trump argued that his statements about Carroll were within the scope of his employment (and so a defamation claim would be effectively barred under the Westfall Act). To my understanding, the current disposition of that lawsuit is that this is considered a question of fact for a jury to decide (at least according to the Second Circuit). What can be said is who does not hold copyright: The US Senate and/or the US government as a whole. The only way the Senate could acquire copyright in this letter (short of the Senator directly granting it to them) would be as a work made for hire, but the work-for-hire doctrine requires that the work be prepared by an employee as part of their official duties, just like the federal copyright bar. So the Senate cannot acquire copyright in this manner. If anyone owns the copyright, it is most likely the Senator. |
Why does "note up" mean "check whether subsequent decisions have followed its precedent or not"? Why was the "process of examining how a case has been treated in subsequent cases to determine if it is still authoritative or “good law”" termed "note up"? Step 4: Find Cases That Have Considered the Statute (Note It Up) To note up the statute (i.e., to see if it has been considered in the courts, once you have located the statute click the "Noteup" tab and then the search button. Links to cases that have considered that statute will be displayed. Maureen F. Fitzgerald, BComm (Univ. Alberta), JD (Univ. Western Ontario), LLM with Merit (London School of Economics), PhD (University of British Columbia). Legal Problem Solving – Reasoning, Research and Writing (2019 8e), p 134. | The term "note up" is probably an effort to find a generic term for what is called "Shepardizing" in the United States after the legally protected trade name of Shepard's citations, the only commercial publisher in the U.S. who provided resources with which it was possible to do this kind of search for most of its legal history (basically until computerized databased from multiple publishers came into existence). It was probably coined by a competing firm entering the market and providing the same service. "Validate" probably would have been a more descriptive word, but the firm with this software probably wants to create its own legally protected terminology for this activity that is specific to this process and doesn't have a more general meaning. | Evidence of pre-trial correspondence can be adduced if it is relevant to a fact in issue, and not excluded by another rule of evidence. Commonly, pre-trial correspondence is not relevant to a fact in issue, because it consists of legal argument and rhetoric. In other words, the letter is a solicitor's inadmissible opinion. And when pre-trial correspondence does set out the facts, it is often in inadmissible hearsay form. Pre-trial correspondence is also likely to attract without prejudice privilege (if sent to the other side in an attempt to negotiate a settlement) or legal professional privilege (if private between a party and their lawyer). For all of these reasons, pre-trial correspondence is not usually considered by a judge or jury at trial. However, in some circumstances pre-trial correspondence is admissible, typically as an admission, prior consistent statement or prior inconsistent statement. Depending on the facts which make the correspondence relevant and admissible, it may also be appropriate to cross-examine the client, a director or other agent of the client who instructed the solicitor, or the solicitor, about it. In some cases, a client may be cross-examined about a prior statement of their solicitor on the basis that the solicitor would not have made the statement without the client's authority, and would have relied on the client's instructions. If the court accepts that a prior inconsistent statement was made with the client's approval, this may damage their credibility. If the client asserts legal professional privilege, or testifies that their lawyer acted without instructions, difficult questions arise. Some of these questions were explored by the High Court of Australia in Hofer v The Queen [2021] HCA 36. Lawyers and judges will try to conduct cases in a way which avoids these procedural challenges, if at all possible. In rare cases, a lawyer may be called to give evidence about whether a previous representation was actually made or authorised. This is, for example, the purpose of having a solicitor or other reputable professional witness formal documents. Barristers should take special care not to place themselves at risk of becoming a witness, but in exceptional cases where the client waives legal professional privilege, they can also be required to give evidence about the client's previous instructions. Perhaps unsurprisingly, this comes up more often in criminal law. The decision in Hofer was an appeal from the New South Wales Court of Criminal Appeal, which had received evidence from a barrister about the reasons for making decisions during the appellant's criminal trial. Conversely, the Court of Appeal of England and Wales dismissed an application for leave to cross-examine a solicitor, by applying the rules of evidence concerning prior consistent statements, in Hall v The Queen [2015] EWCA Crim 581. | There are several forms of notarized documents, the most common of which are affidavits (which are written statements of a person made and signed under oath) and acknowledgements (which is a notarized statement that a document was signed before a notary, usually used for documents related to real property). There would be no legitimate reason I can think of to notarize an offer letter, and the fact that you want to do that probably means that you are confused about some other aspect of the law that would make you think that you would want to or need to do something like that. A more common thing to do, for example, in anticipation of a lawsuit, would be to prepare and execute an affidavit which states that the letter, attached as an exhibit, was signed by you, and anyone else that you have personal knowledge signed it, for your signature before a notary. A notary is not allowed to execute an affidavit (or a very similar document called a verification which is a very short document saying that the facts stated in a single document asserting a claim in a court case are true and correct in a form substantially similar to an affidavit) if it is signed outside the notary's physical presence (in theory because the notary administers an oath before you sign it). An acknowledgement can be executed by a notary if the person who signed the document comes before the notary in person and acknowledges that it was signed by him or her, even if the notary was not there when it was actually signed. The notary would state the date that you acknowledged it in person to the notary in the acknowledgement and would not make any statement regarding when it was actually signed. There is special formalized legal language that must accompany each kind of notarization, which is called the "jurat". Then the notary signs and dates the jurat in the appropriate place and applies a notary seal near the jurat in the indicated location (if any) mark "L.S." for "location of seal" in latin. | Because they are only apparent with hindsight The judge writing the judgement does not decide what is dicta and what is obiter - that is for some future judge considering a different case and deciding if they are looking at a binding (dicta) or persuasive (obiter) precedent. First of all, the vast majority of cases follow precedent; they do not set it. If you are trying to disentangle dicta and obiter then you are usually looking at the case of an appeal, not a trial judgement. Most trials turn on the facts, not precedent-setting points of law - usually, there is no dispute about the law at all. Even then, most appeal decisions don't set a precedent either and sink into obscurity until at some point in the far future when a lawyer doing research on a particularly tricky case has an "ah-ha" moment and says "Look at what Justice Bozo said in paragraph 365 of this 56 page judgement about a tangentially related issue between different people at a different time in a different place - I need to spin this as dicta." Meanwhile, the lawyer on the opposite side has a different precedent from a different case that contradicts this one - one of them must be wrong. So a trial judge faced with this paradox has to resolve it; they don't get to say "this is too hard". Basically they have 2 methods of doing so: The decide that one (or both) are obiter and make the decision based on the precedent that remains. They decide that both are ratio and write a judgement that they know has to be appealed because they have to follow both precedents and they can't. At least in Australia, this is becoming more and more common. The judge basically says "I have two conflicting binding precedents, I pick this one for [reasons]. Now go off to the Court of Appeals to see if I got it right. I look forward to finding out." Of course, the winner isn't going to appeal and it may not be in the loser's commercial interest to do so. So maybe the question just gets kicked down the road for some other poor bloody judge to have to deal with. | Two lawyers in a (administrative) hearing suggested that I would have to "lay a foundation" in order to introduce an email as evidence. Is this a general rule of evidence? “Laying the foundation” is a term of art used to explain the process of meeting the requirements for having particular types of evidence admitted. Most courts, administrative bodies, and other tribunals require that all evidence they admit be relevant and authentic. This applies to all types of evidence including oral testimony and to physical pieces of evidence that a party is trying to admit (such as printed e-mails). The rules of evidence that most states have adopted are modeled after the Federal Rules of Evidence. These rules are a codification of evidence law principles designed to only have relevant and authentic evidence admitted in hearings. So, as general rule, you must ask a witness questions to show how his testimony is relevant and authentic. For example, to meet the relevance requirements, a prosecutor in a DUI case would ask a police officer questions that showed he was the one who pulled over the person accused of drunk driving. His testimony about why he pulled over the suspected drunk driver is relevant because “it has [a] tendency to make a fact more or less probable than it would be without the evidence; and the fact [he is testifying about] is of consequence in determining the [case].” Fed. R. Evid. 401 (the test for relevant evidence). This evidence would meet the authenticity requirements in evidence law by having the witness: 1. Be competent to testify. Fed. R. Evid. 601. 2. Take an oath to testify truthfully. Fed. R. Evid. 603. AND 3. Testify about what they personally observed and not speculate. Fed. R. Evid. 602. There are more specific foundational rules for: hearsay evidence (see Fed. R. Evid. 801 through 807) and physical pieces of evidence such as voice recordings, documents, and e-mails (see Fed. R. Evid. 901 through 1008). If so, could someone explain when it applies, and what in particular is necessary to satisfy the rule? As you explained in the comments to your question, this hearing is a special education impartial hearing in New York State. According to New York State Regulations of the Commissioner of Education § 200.5(j)(3)(xii)(c), the rules of evidence do not apply. This regulation explains that a more relaxed standard applies: The impartial hearing officer may receive any oral, documentary or tangible evidence except that the impartial hearing officer shall exclude evidence that he or she determines to be irrelevant, immaterial, unreliable or unduly repetitious. The impartial hearing officer may receive testimony by telephone, provided that such testimony shall be made under oath and shall be subject to cross examination. (Emphasis added.) Therefore, to admit your e-mails under this standard, you only need to show the administrative law judge that the evidence is relevant, material, reliable, and not unduly repetitious. A much easier standard task than having those e-mails admitted under the Rules of Evdience. The best thing to do would be have the person who received or sent the e-mails present at your hearing and able to testify as a witness. Then, do the following: Before the hearing, have your witness print a paper copy of the e-mails. Provide a copy of the e-mails to the opposing side at least 5 business days before the hearing. See § 200.5(3)(xii) (“Each party shall have the right to prohibit the introduction of any evidence the substance of which has not been disclosed to such party at least five business days before the hearing.”). Mark the e-mails with an exhibit number or letter (usually the plaintiff uses numbers and the defense uses letters). At the hearing, call your witness and have him/her sworn in. Ask to the judge/hearing officer to approach the witness, and give a copy to the e-mails to him. Also give a copy to the judge/hearing officer and opposing counsel. Show the e-mails to the witness. Ask the witness if he recognizes the exhibit you handed him. Have the witness explain how he recognizes it. His testimony should explained the following: That these are e-mails he printed. When and how he printed them. Who they were sent to and sent from. Who the e-mail addresses belong to (many times this is indicated in a person's e-mail signature). What the e-mails are about and why they are important at the hearing--to show that they are relevant. | A promise that a court would not enforce by injunction can still be valid consideration and be part of a valid contract. Failure to carry out such obligations would lead to some measure of money damages, most likely. On the other hand, provisions specifically barred by law, or against public policy, such as a promise to commit a crime, are void from the start, and form no part of a valid contract. Such provisions may be treated by a court as if they had just been left out, or if they were essential to the contract, or formed the sole consideration, the whole contract might be considered void. If a term is too vague for a court to determine if it has been violated or not, the court may try to clarify it, or may just ignore it. Just what it would mean for a tenant to "undermine the leadership" of a landlord is not clear to me, at least. That might well be held to be "too vague". As to "not complain" it may be that a tenant has a legal right to make official complaints, which cannot be waived by contract. Or it may not, depending on the local laws. | Stogner v. California, a criminal case, held that "A law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution". In 1798, in Calder v. Bull, SCOTUS long ago decided that the Ex Post Facto Clause does not apply to civil cases. In that case, Calder had been entitled to property under a will, and the Connecticut legislature changed the law. The Supreme Court held that the legislative act was not an Ex Post Facto law. Chase's reasoning, which relies on the distinction between ex post facto law and retrospective law, is this: In my opinion, the true distinction is between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time or to save time from the statute of limitations or to excuse acts which were unlawful, and before committed, and the like, is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime. The expressions "ex post facto laws" are technical; they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. So, yes it can. | The power definitely exists, and it is also said by some (respectable persons) that they have a duty to do so. There are many schools of legal interpretation. One trend is to attempt to discern legislative intent, based on whatever facts there might be such as newspaper articles or legislative committee reports. A contrary trend is to look exclusively at the text enacted by the legislature – this school is known as the Textualist school, and is currently dominant in the US Supreme Court. There are also non-textualist "progressive" trends that seek justice according to some social principle, rather than the text of the law or the definitive intent of the original legislators, which may address the situation that you have in mind. In civil cases, statutory law tends to be rather unclear, allowing a judge to decide on the basis of their beliefs of what is fair, equitable or just. That is because in the common law, close to a millenium old, judgments were supposed to be "just". In the US, much of the common law has been re-coded as statutory law, and in that case, the intent of the legislature is really to "encode the sense of justice implicit in the common law". This does not mean that trial judges have unlimited power to set aside the words of existing laws. Their primary obligation is to apply the law literally, as interpreted by their superiors (appellate courts). When the higher courts are silent and when the legislature is not clear, the trial judge has some leeway to follow whichever jurisprudential philosophy they adhere to. |
Independent contractor, feeling like an employee - Will California's AB5 change my classification? I have been an independent contractor in California for a number of years with a business. Some of my tasks include graphic design, ad creation and management, search engine optimization, product research, marketing reports, hiring other contractors online. I don't know if I have a true job description, but as you can tell, my responsibilities are amorphous and can change when my boss feels like doing so, or when I feel like taking the lead on a new project. I signed an independent contracting agreement. I work less than 20hrs a week. I sometimes work from home, but my boss is clear that he wants me in the office as much as possible. We have a word-of-mouth agreement that I should clock 16hrs a week, minimum. My actual schedule is flexible and changes often. Over the years, I've worked with companies, to my boss' knowledge, but work with my boss has been consistent for years. I'm saying these details, because I have an inkling that soon, this job may not be classified as "independent contracting". It's looking likely that California will pass a bill overhauling the meaning of independent contracting (emphasis added): The three-point test is simple enough that workers can apply it to themselves. An independent contractor, it says, must be free from a company’s control and direction. The work he or she does can’t be the company’s main business. And the contractor must be performing work that he or she does in an independently established trade. If even one of those statements is untrue, a worker must be classified as an employee, and is entitled to the benefits and protections that that status entails. The point that may be arguable is #3. Each skill I have could be an established trade that I could offer to another company. Traditionally, someone with a website would hire an independent contractor to do, say graphic design or copyrighting, or whatever. However, I'm doing a set of duties that together aren't classified as an independently established trade. Maybe there are certain tasks I do that invalidate this point. Am I reading too much into this? I do feel like an employee, given the wide scope of my duties. | No The intent of the proposed bill is to codify existing case law. You are an employee now and you will be an employee then. You are an employee now because a) you are not free from the company's control and direction or b) the work you are doing is the company's main business. If you read the bill you will find out that c) involves "an independently established trade, occupation, or business" so your business qualifies for this but you need to qualify for all three factors to be an independent contractor. | Yes One of the major factors that distinguishes a contract relationship from an employment relationship is the ability of the contractor to sub-contract. | First, Texas law requires the employer to give a written earnings statement to any employee which reports the rate of pay, the total amount of pay, deductions, and hours worked if the job is paid at an hourly rate. The law also says that an earnings statement may be in any form determined by the employer. Second, there is no law requiring there to be a single earnings statement or a combined statement, in case a person is paid at different rates, the requirement is simply that the information must be provided. It is legal to hire a person to work at different rates, as long as they have some mechanism for tracking what a person is doing. It is required that they pay you a different rate for working more than a certain number of hours, which will therefore be reflected in the earnings statement. | Is a text message legally binding? Yes, but the terms of the message need to be clear enough to ascertain the parties' intent at the formation of that contract or agreement. A contract does not even need to be in writing. There are also oral contracts and implied contracts, the latter referring to contracts which are inferred from the parties' conduct. A contract such as the agreement you describe here is binding regardless of its form. It is just easier to prove the existence of a contract if it is in writing. You did not specify your jurisdiction. If it is in the US, the price tag --rather than the downpayment-- of the object of the contract (i.e., the puppy you intend to buy) determines whether your complaint would need to be filed in Small Claims court. Generally speaking, parties to a dispute in Small Claims court have to represent themselves. Two remarks are pertinent. First, developing writing skills is utmost important not only for litigating a dispute, but also during the process of formulating the terms and conditions of a contract/agreement. Your post indicates that you seriously need to work on that. Second, the end of your post reflects that one of your managers violated labor law(s), which to most of us would be more worrisome than the controversy about the puppy. Legislation in most or all jurisdictions outlaws the act of withholding an employee's compensation regardless of its form (salary, commissions, and so forth). You might want to gain acquaintance with the labor laws of your jurisdiction so you can assess whether or how to proceed (does legislation require the employee to "exhaust administrative remedies" prior to filing in court? are administrative remedies optional? do these exist at all?), even if only to ascertain whether the deadline for filing the corresponding claim has elapsed. | tldr It depends on: whether the employment agreement specifies which state's law governs contract disputes; and how your state of residence and work treats governing-law clauses. Background To know whether § 2870(a) applies in this instance, a good place to start would be the employment agreement itself—contracts often contain a section on "Governing Law." This is an example of a choice-of-law problem, which is just preliminary procedural hurdle for a court to clear. Clearing the hurdle is usually easier for the court when the parties agree in advance about which state's laws will govern contract disputes. So, if the agreement says that California law governs, then one would typically look to statutes like § 2870(a) to interpret the agreement's provisions. But that's not always the definitive answer. Some states have laws designed to protect their residents by allowing them to void governing-law clauses that seek to have contract disputes adjudicated in a state where the employee doesn't live or work. Without knowing where you live, and in the interest of generality, let's use California residents as an example. Section 925(a) of California's labor code allows California resident workers to void governing-law clauses in employment agreements that deprive them of the protection of California's laws. But § 925(b) implies that the governing-law clause still controls unless that California resident worker affirmatively chooses to void the clause. Non-California employees would look to see whether their states have protective jurisdictional statutes like this. united-stateschoice-of-law | The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot". | it depends There's Alice, who wants some service. There's Bob, who offers it. And there's C-Corp, which offers to connect people that seek service with those that offer it. The liability of C-Corp depends on many factors. Some that came up: Is Bob's service needing a license of sorts? C-Corp might be liable if they were warned that Bob lacks such or C-Corp represented that Bob had the license but did not. Is C-Corp getting a fee for referral/payment services only or do they manage or contract with Bob in some way or another? If C-Corp manages Bob or has a work contract with them, they might be akin to a Builder that hires various contractors and who is liable to the buyer of the building and to whom the contractors owe liability for their work. If they just provide the connecting and payment service, that's not as easy, but they still might be liable to some degree. What does the contract say? If they only provide a listing service like LinkedIn and specifically disclaim and point out that all listings are the contractor's making, they might be totally immune and have no liability. | I've litigated cases like these before. The IRS enforcement reaction is swift and severe. Penalties for the employer are heavy and rarely waived. It would be rare for a business like this to stay operational long enough to issue a W-2. A business like this would probably be shut down by the IRS and have the people responsible for the payroll function, at a minimum, promptly burdened with tax liens, within four to six months. These cases also constitute a significant share of all criminal tax prosecutions. The odds of someone doing this spending several years in federal prison is high. Generally speaking, if the wrongdoing is fully on the part of the employer without the collusion or knowledge of the employee, the IRS will not force the employee to double pay the taxes that should have been withheld by the employer in this situation. Instead, this IRS will try to recover the amounts that were withheld from the employees but not delivered to the IRS. It will seek to recover these amounts from the employer and also from other responsible persons in the organization (and from outsourced professionals) with the authority to pay the IRS who did not do so. There may be circumstances, if push comes to shove, where the IRS could collect from the employees in a case like this one (I've never had occasion to need to research that issue), but that would be the rare exception and not the rule, in practice. On the other hand, if the employer simply does not withhold taxes or prepare W-2s at all, and either 1099s people who should have been classified as employees (or files no information tax returns at all), the IRS will generally insist that the employee pay income taxes on the full amount owed and that they pay the employee part of payroll taxes. It will also pursue the employer for the employer's share of payroll taxes. The employer will also be jointly and severally liable for any taxes that should have been reported and subjected to withholding that are not paid by the employee (perhaps because the employee spent all the money). Sometimes cases like this are also criminally prosecuted, but it is less common to do so. |
What counts as redistribution of copyrighted calculation? In quantitative finance SE, there is a question asking for help calculating an index. If someone writes a program that performs the calculations described in the handbook and shares that program publicly, would it violate the index copyright? Or does the translation from English to computer program make it ok? | Copyright never protects ideas or processes, it only protects expression: words, images, and sounds, some of which may describe ideas. But when a work is nothing more than a translation of an idea into words, with no independent originality -- when almost anyone would use more or less the same way to describe the idea, then the work will not be protected by copyright at all, as it is not considered an "original work". Computer code that implements an algorithm often falls under this rule. It is my belief that the code shown in the linked SE thread would fall under this rule, and would not be protected by copyright at all. If this is correct, then anyone may share such a program with no copyright concern. | You cannot safely rely on the US doctrine of Fair Use, except if the rights-holder sues you in US courts. In France, there are limited exceptions to the authors proprietary rights. Under Art. L-122-5, there are some relevant potential exceptions: 3ºa) analyses and short quotations justified by the critical, polemic, educational, scientific or informatory nature of the work in which they are incorporated... 4º. parody, pastiche and caricature, observing the rules of the genre. Your description of the intended use does not fit these criteria. Consulting with a copyright attorney is advised, if you don't want to obtain a license. | Why would the method by which you transfer a item that has a copyright impact the copyright? You buy a new book at a new bookstore, a used book at a used bookstore, a used book at a garage sale, someone gives you a book, you find a book on the sidewalk, you steal a book from a store, you buy and download an ebook, you give an ebook to someone on a USB stick, you download an ebook via Bittorrent. The author's copyright - as well as the design copyright, and any book company trademarks - does not change in any of those scenarios. Copyright around most of the world - read Berne Convention (Wikipedia) - says that copyright exists at the moment of creation of a work, i.e. a work that you say is "100% yours". This has nothing to do with the way the work may be transmitted or stolen or downloaded. A work in the public domain can still be copyrighted in terms of cover artwork and design, annotations, etc. Read Welcome to the Public Domain - Stanford Copyright and Fair Use Center You can say someone "owns" a book in the sense that they might have paid for it or it is personal property and one could justifiably call it theft if someone took it from them, but "owning" the physical or electronic copy in any sense doesn't mean you own the copyright. Read the copyright notice on a book or ebook; you get a license to read it, not ownership of it. Read What's the difference between Copyright and Licensing? - Open Source Stack Exchange. Sure, the TOS of a network can specify the ownership/licensing status of the files shared on such network. They will almost all explicitly say not to upload or share anything that will violate the copyright of that work. The TOS of a network could possibly say that anything that is uploaded is automatically licensed to them. A network could demand the reassignment of copyright upon upload, but that would have to be outlined in the TOS and is not simple. See Copyright Ownership and Transfers FAQs - Stanford Copyright and Fair Use Center. | 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) | We can't really know until the ruling is made. The Supreme Court might issue a ruling that encompasses all software APIs, or may predicate its ruling on this more specific situation, e.g. that because Oracle's library is so extensive its structure can be copyrighted even if that does not necessarily mean that any individual function signature can be copyrighted. They could also decide based on something unrelated to the heart of the copyright question - skimming through the petition for a writ of certiorari, they could make a decision based on the original implied license from Sun, for example. Hopefully their decision will answer the copyright question of function declarations completely, but it isn't required to. | 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. | Distribution on YouTube implicates, at least, US copyright law. Shropshire v. Canning 809 F.Supp.2d 1139 (N.D. Cal. 2011), Subafilms v. MGM 24 F.3d 1088 (9th Cir. 1994) Are you infringing? Is the original work eligible for copyright? "It is undisputed that computer programs— defined in the Copyright Act as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result, can be subject to copyright protection as literary works." 17 USC 102, Oracle Am., Inc. v. Google, Inc., 750 F.3d 1339 (Fed. Cir. 2014) (internal citations omitted). Are you making a copy or displaying the work publicly? (17 USC 106) You concede that you are doing this in the hypothetical, so we can skip this step. Do you have permission to do this? Some work is licensed to allow your proposed use. If you have permission, then this entire answer is moot. Are you taking what amounts to a substantial taking of the original? Presumably, you will not need to show the entire source file to present the naming conventions and techniques that other developers have used. But, what you do show will be an exact reproduction of the original. In the case of computer programs, all US districts use the abstraction-filtration-comparison test. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). The abstraction stage of this test is irrelevant in this hypothetical because the reproduction is exact. Filtration excludes any uncopyrightable elements of the original from consideration (due to scènes à faire, merger, lack of originality). The comparison stage compares what remains after the filtration stage, to determine if the new work takes substantially from the original. Fair use defense If your use is found to be infringing based on the above analysis, the affirmative defense of fair use is available. I can't tell you whether a fair use defense would be applicable or successful in your particular case. However, you can search the US Copyright Office's Fair Use Index for many examples successful fair use defenses when a literary work was reproduced in part or whole for educational purposes. There are also other affirmative defenses available (implied license, for example), or defenses that directly attack the elements of copyright infringement. Some confusion exists regarding "idea/expression merger" as a defense after a prima facie case of copyright infringement has been made. This isn't completely correct. Where idea/expression merger enters the analysis differs from circuit to circuit. In the 6th circuit, merger enters in the copyrightability analysis (paragraph 1. above). But, the 2nd and 9th circuits treat merger as part of the infringement analysis (paragraph 4. above) and in the 9th circuit, merger is an affirmative defense. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) The idea/expression merger doctrine is not implicated just because "the idea one that is expressing is 'this is the code they used.'" When you need to cite/show the original work for purposes of "criticism, comment, news reporting, teaching", that is a direct implication of fair use. Using using this justification triggers the full four-factor fair use analysis. (17 USC 107). You don't get to reproduce a work just because you want to say "this is the work they created." | united-states The flowchart included in the question is trying to summarize a rather large amount of legal uncertainty into one image. It must be emphasized that each decision point represents an unsettled area of law. Nobody knows which path through that flowchart the law will take, or even if different forms or implementations of AI might take different paths. The short and disappointing answer to your question is that nobody knows what is or isn't legal yet. To further elaborate on each decision point: The first point is asking whether the training process requires a license at all. There are two possible reasons to think that it does not: AI training is protected by fair use (see 17 USC 107). This is a case-by-case inquiry that would have to be decided by a judge. AI training is nothing more than the collection of statistical information relating to a work, and does not involve "copying" the work within the meaning of 17 USC 106 (except for a de minimis period which is similar to the caching done by a web browser, and therefore subject to a fair use defense). The second point is, I think, asking whether the model is subject to copyright protection under Feist v. Rural and related caselaw. Because the model is trained by a purely automated process, there's a case to be made that the model is not the product of human creativity, and is therefore unprotected by copyright altogether. Dicta in Feist suggest that the person or entity directing the training might be able to obtain a "thin" copyright in the "selection or organization" of training data, but no court has ever addressed this to my knowledge. This branch can also be read as asking whether the output of the model is copyrightable, when the model is run with some prompt or input. The Copyright Office seems to think the answer to that question is "no, because a human didn't create it." The third decision point is, uniquely, not a legal question, but a practical question: Do you intend to distribute anything, or are you just using it for your own private entertainment? This determines whether you need to consult the rest of the flowchart or not. The final decision point is whether the "output" (i.e. either the model itself, or its output) is a derivative work of the training input. This would likely be decided on the basis of substantial similarity, which is a rather complicated area of law. To grossly oversimplify, the trier of fact would be shown both the training input and the allegedly infringing output, and asked to determine whether the two items have enough copyrightable elements in common that copying can reasonably be inferred. |
Does US law make a distinction between fair and unfair discrimination? In South Africa the term fair/unfair discrimination is often used to illustrate between lawful and unlawful discrimination. I get annoyed when they have the anti racism campaigns in English football when they say that society has to eradicate all forms of discrimination. I think they may mean all forms of unfair discrimination but it still seems ignorant to what discrimination really means. There was a landmark case in the Western Cape where a rich wine farm was left in a will to the land owner's nephews. The land owner's 5 daughters sought to have the will deemed invalid because the daughters believed it was discriminated based on gender, because right or wrongly the land owner believed farming was a man's job. After years of litigation the SA courts said that although the sister was indeed discriminated against that it does not invalidate a will. People are free to leave their possession in a will in accordance with any reason they may choose. In effect deeming it fair discrimination. Also noting an inheritance is a gift and nobody has a right to it. So in closing, I would like to know if the US system has a similar concept of fair and unfair discrimination. If they even use those words. After all you discriminate against Pepsi everytime you buy Coke. | In the United States, what is "fair" and "unfair" is typically not a legal question, in large part because it is so subjective. There are some exceptions -- such as in copyright law or competition law -- but in the discrimination context, we use the lawful/unlawful distinction. Bequeathing a house to your child solely because he is your child, for instance, is not fair but it is lawful. The same is true for giving more to your oldest child simply for being the oldest, or cutting a black relative out of your will: not fair, but lawful. Assuming there's a valid will, a court will rarely make a serious inquiry into the fairness of the decedent's discrimination among beneficiaries. The same types of issues come up in contexts that are more routine subjects of discrimination law. In employment, for instance, you might have two employees: a lazy white salesman who's been around for 20 years and a new black woman who does an excellent job answering the phones. If you only have enough money to give one raise, giving it to the black woman is both fair and lawful. Giving it to the white guy because he's been around longer is probably not fair but still lawful, while giving it to him strictly because he's white is probably neither fair nor lawful. The inutility of the fair/unfair distinction can become especially clear in the affirmative-action context, where the question of fairness remains hotly debated. If an employer has two equally qualified candidates, would it be fair to require him to choose a black applicant over a white applicant as a means of redressing centuries of discrimination against blacks? What if the black applicant is only marginally less qualified? What if the black applicant is far less qualified? There are many who think each of these would be fair, and there are many who think none of them would be. In the end, then, the courts tend only to ask whether discrimination is lawful, which can usually be resolved by applying the facts to the law, leaving questions about what is fair to lawmakers and commentators. | Is blocking certain people while allowing everybody else to view some content discrimination Yes. and violate anti-discrimination laws Probably not, at least in the US. There is no federal law prohibiting "discrimination" in general. There are specific laws regarding discrimination against certain groups in certain contexts. They would probably not apply to an individual determining who is allowed to view their social media posts. That said, there are some specific contexts where this might be illegal. They would generally involve non-personal use of the account. The courts recently ruled that Donald Trump may not block people on his Twitter account, because he's using it in an official presidential capacity rather than just his individual capacity. Also, racial discrimination in housing is illegal, so if you're selling your house and you block all black people from viewing your house photos, that would probably be illegal as well. Also is not being able to consume information available on a public platform a violation against right to freedom. I'm not sure what you think a "right to freedom" would entail. But I don't think you have the right to demand that a person allow you to access their social media accounts. | 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. | Justice Gorsuch attempts to explain (at p. 20 of his concurrence): In the years following Bakke, this Court hewed to Justice Powell's and Justice Brennan's shared premise that Title VI and the Equal Protection Clause mean the same thing. ... As a result, for over four decades, every case about racial preferences in school admissions under Title VI has turned into a case about the meaning of the Fourteenth Amendment. A journalist's account on scotusblog also notes that the tests under Title VI and under the 14th amendment have been understood as identical: Private universities like Harvard are not subject to the 14th Amendment, but Title VI applies the same test to private universities that receive federal funds, as Harvard does. See also commentary from a law firm blog in 2022: Harvard, as a private university, is not explicitly regulated by the Fourteenth Amendment. Instead, the case against Harvard relies on Title VI of the Civil Rights Act of 1964, which prohibits any entity receiving federal financial assistance – as Harvard does – from discriminating on the basis of “race, color, or national origin.” The Supreme Court has held that Title VI’s protections match those of the Fourteenth Amendment’s Equal Protection Clause, and thus, the analyses are essentially identical. I read the majority reasons to be a continuance of this conflated meaning. In footnote 2, Chief Justice Roberts is careful to say that the Court is evaluating Harvard's admissions program "under the standards of the Equal Protection Clause" (emphasis mine), rather than stating that the Equal Protection Clause applies against Harvard. Later, he does slip back into language that could be read as suggesting the Equal Protection Clause is being applied directly: "For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause," but a better reading is that he is merely recognizing that Title VI imports the same guarantees of the Equal Protection Clause. Justice Gorsuch would prefer to re-introduce the analytical clarity about the source of the constraints. | I will assume B.C. as your specific jurisdiction: there could be provincial differences. As phoog says, you certainly may mention this problem to management, who have an interest in keeping you happy. No law against that. As for the "legality" of sexual harassment, the CBA BC branch says that "Sexual harassment, which is discrimination based on sex, is illegal under the BC Human Rights Code". It is interesting to see what the code actually says. Section 8 Discrimination in accommodation, service and facility says (1) A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons. The question is whether using the term "babe" constitutes discrimination against a person regarding service because of sex. This article on the Law Society of BC web site specifically identifies "verbal harassment" as an instance: Verbal harassment – This comes from anyone within the firm and or other workplace or a person who does business with the firm or company. Some examples are: referring to an adult as a babe, honey, girl or stud; whistling at someone; turning work discussion to sexual topics; asking personal questions of a sexual nature; making sexual comments about a person’s clothing, anatomy or looks; or asking someone repeatedly for dates and refusing to take no for an answer. (emphasis added). In case you're thinking that maybe there's a difference in what the code says regarding services and what it says regarding employment, section 13 Discrimination in Employment says: (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. In other words, it is defined simply in terms of "discrimination", which means "making a distinction". It is known that unwanted sexual advances constitute illegal discrimination, see Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252. The court found that Sexual harassment is a form of sex discrimination. Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims of the harassment. They did not, however, find that this is the only form of sexual discrimination (obviously, since it isn't). I can't point to case law indicating whether gender-biased expression are actionable, but that would be consistent with the letter of the law and "babe" is indeed an example cited in the Law Society article. | Your bank is not discriminating against you. Your reasons for not having the required amount of funds pass thru your account has nothing to do with your marital status. In general, it's problematic to make a chain-of-cause-and-effect argument for discrimination. For example. Your argument is analogous to the following. My boss fired me for being late to work. But I was late to work because my child woke up late and missed the school bus; so I had to drive her to school. Therefore, my boss fired me for having children. That type of chain-of-cause-and-effect argument for discrimination just doesn't hold water. It is non sequitur and a requires a leap of logic. | Washington State is an "At Will" employment state meaning that, with exception to some protected classes and bargaining, the employer may terminate the employee for any reason the employer can cite, or no reason at all. If the firm used it as a benefit of the job but it wasn't agreed upon on the contract, its not a deception as if you can hold the job to the down season, you have less work to do. If a promise was made for employment into the down season during the negotiating of the job, and this was documented, it could be. It could be that he did all the work required of him, but another higher went above and beyond and he got the ax because he was the newest and the lesser performer. Either way, the employer is well within their right to fire an employee for any reason they choose absent discrimination based on protected class status. | Without prejudice in a legal communication has a similar effect as off the record does in journalism. Without prejudice can be applied to any form of communication written or verbal; mediations, for example, are almost always conducted on a without prejudice basis. The legal effect is that anything said or written in the communication is inadmissible in a court. A typical example is in a settlement offer: "We have your claim for $1,000,000 and we think its a load of c**p for reasons A, B & C, however, without prejudice we offer the amount of $3.50 as full and final settlement of your claim. This offer remains open for 7 days." The party that receives such a letter can not use or rely on anything it says in legal proceedings. It is a practical and invaluable method of allowing real negotiation and concessions to be made without the risk that these will be used against you if it all falls in a heap and you end up in court. Without prejudice, save as to costs has the same effect with the addition that you are specifically making a settlement offer (like my example above). If a matter is resolved by a trial the judge will award costs either against each one party or order that each party pays their own costs; in general, the costs "follow the event" i.e. the losing party usually gets stuck with the costs. If the "losing" party can show that they made a reasonable offer of settlement then they can apply to have the "winning" party pay their costs from that point on. For example see NSW Costs. Now, a document either is or is not without prejudice irrespective of if it carries the words or not - you can’t make a document that is not part or a bona fide negotiation without prejudice just by writing the words on it and one that is part of a negotiation is without prejudice even if it omits the words. |
Why was no constitutional amendment needed to change the rules on succession to the Canadian throne? In 2013 a statute altered the rules on succession to the throne in Canada. (Specifically, if a woman is the eldest child of the monarch then she inherits the throne upon the monarch's death even if she has a brother. Earlier, a woman could inherit the throne only if she had no brothers.) Juxtapose this with the fact that nothing short of a constitutional amendment could make it lawful to build a bridge connecting Prince Edward Island with the mainland, and it seems weird. In Canada maybe it's not as easy as in the U.S. to discern which parts of the law are to be considered part of the constitution. (By comparison.) But this seems "constitutional" if that means how the state is constituted. Why was no constitutional amendment needed in this instance? | The top courts in both Ontario and Quebec have heard challenges to the Succession to the Throne Act, 2013, both upholding the Act, but for different and somewhat contradicting reasons. For reference, here is the Act's only substantive provision: The alteration in the law touching the Succession to the Throne set out in the bill laid before the Parliament of the United Kingdom and entitled A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages; and for connected purposes is assented to. Quebec I'll start with Quebec, since it provides a clear direct answer to your question. In Motard v. Attorney General of Canada, 2019 QCCA 1826 (English translation linked) the court concludes in paragraph 95 that: [...] Canada does not have rules of succession to the throne save for the unwritten constitutional principles of symmetry and hereditary succession determined by the United Kingdom. [...] Note that the principle of symmetry means maintaining the same monarch and/or rules of succession as the United Kingdom. Effectively, Canada only assented to the British changes as required by the Preamble to the Statute of Westminster 1931. Since there exist no separate Canadian rules of succession, there was no effective change to Canadian law, let alone one requiring constitutional amendment. Leave for appeal to the Supreme Court was denied. Ontario The Ontario challenge was Teskey v. Canada (Attorney General), 2013 ONSC 5046 (lower court decision cited, the Court of Appeal summarily affirmed). It relies mainly on precedent set in O’Donohue v. Canada, 2003 ONSC 41404. I'll outline my opinion, but unfortunately there is no direct answer to your question as both cases revolved around an attempt to invalidate the previous rules of succession on the basis that they violated the Charter by barring people who married Catholics (which the new rules also removed). As such, there was no clearly articulated reason in Teskey as to why the 2013 Act followed proper constitutional amendment procedure or whether it was required to begin with. O'Donahue is in agreement with Motard that symmetry and rules of succession are constitutional (para. 28 & 36-37), but asserts that there exists separate Canadian and British rules in paragraph 34: The operation of this commitment to symmetry and union of Canada under the British Crown was demonstrated by the adoption in 1937 of the Succession to the Throne Act, 1 Geo. IV, c.16. This Canadian statute effected changes to the rules of succession in Canada to assure consistency with the changes in the rules then in place in Great Britain. The changes were necessary in light of the abdication of Edward VIII in 1936. Absent this Canadian statute, the statutory change in Great Britain to account for Edward VIII’s abdication would have been contrary to Great Britain’s commitment in the Statute of Westminster. Arguably, without this statute, Edwards [sic] VIII’s abdication would not have been effective in respect of the Crown of Canada. This results in a bit of a puzzle. If both symmetry and separate Canadian rules of succession are part of the constitution, then on a change in the British rules, Canada must either break symmetry (presumably a constitutional violation) or amend the rules of succession (presumably a constitutional amendment). This did not matter much for Edward VIII's abdication, as prior to patriation in 1982 this was all a bit moot since the Canadian constitution was effectively British, but it does matter for the 2013 Act. Here, Teskey paragraph 13 hints at a resolution: In the present case, the Applicant submitted in argument that Canada could and should adopt different succession rules from those which pertain in Great Britain with the possibility of recognizing a different monarch. I reject that argument on the same basis as Rouleau J. which is that this would change our present constitution in a fundamental manner and would involve the court changing, rather than protecting, our fundamental constitutional structure. and also paragraph 15: [...] the rules of succession and the requirement that they be the same as those of Great Britain, are necessary to the proper functioning of our constitutional monarchy [...] I believe that the most sensible reading is that Canada was constitutionally required to adopt the 2013 Act both to maintain symmetry and to respect the constitutional Statute of Westminster 1931. In light of this, it's my opinion that a constitutional amendment for modifying Canadian rules of succession was not required, since the constitution already foresaw this scenario. | Do newer contracts superceed prior ones? It depends on whether the contracts conflict with each other. That is why many contracts contain language akin to "This contract supersedes and replaces any previous or contemporaneous agreements between the parties". The parties would need to adapt such clause if the contracts are compatible and they intend to maintain them. I have seen many contracts saying tgis "this will happens unless agreed in writing to do something else".However many contracts do not have this in written. The main purpose of that language is to specify that any amendments to the contract shall be in writing. That precaution makes it easier to ascertain whose version of the contract is binding, such as where party A alleges an oral amendment and party B denies that such amendment was agreed upon. Your outline of the agreements between A and Z is incomplete. At the outset, the contracts are not necessarily incompatible: The first contract does not provide a deadline for payment; it is unclear when the 2nd contract will be in force; there is not enough information to discern whether the 2nd contract is an amendment of the 1st one, or an independent agreement involving unrelated considerations; there is no indication that the 2nd contract replaces and supersedes the 1st one; and if Z is the draftsman in both contracts, the doctrine of contra proferentem could favor A's legal position. Therefore, the matter of superseding contracts depends on various factors. | 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. | Organically rather than by design, laws and courts preceded the theoretical constitutional basis. Kings developed a practice of legislating in council, rather than solo, meaning that their edicts went out not as "the King decrees XYZ" but "the King, with the assent of the archbishops, bishops, abbots, barons, etc., decrees XYZ". This eventually became the Parliamentary system, wherein only Parliament could make laws (especially about raising taxes) and the King alone could not. Because of the gradual evolution, it's not easy to point to the first such statute or even the first proper "Parliament". The form was not settled. Nowadays we expect Acts to start with a set "enacting formula", to be published in a set way, and to be called "Acts" at all. Earlier laws lacked these elements. It was common for Parliaments to transact a variety of business, such as appointing officials or distributing money, without strictly distinguishing a category of what we would now call a "public general Act", something setting out broadly applicable rules under the tenor of law. To take an early example, the Domesday Book was undoubtedly commissioned by William I in council in 1085, but we could argue for a long time whether that really counted as a law made by the King alone or through a proto-parliamentary approach. The Assize of Clarendon in 1166 is closer - we have the text and it refers to the counsel of all the barons - but still not obviously "an Act". Magna Carta came in 1215 and was repeatedly confirmed by successive monarchs in slight variations; only the 1297 version is currently deemed to be an Act still partially in force. At the same time as this legislative activity, a bewildering array of courts applied essentially customary law for local cases. If you commit a murder in Durham in 1300 and would like to not be executed, then you would be appealing (I think?) to the mercy of the Prince-Bishop in his own court. A few dozen miles away and the process and authority was different. Things gradually became more uniform and systematized, and by the sixteenth century there was enough critical mass of legal philosophy to try to "explain" the legal system more formally and in recognizably modern terms. We may as well take Edward Coke's Institutes of the Laws of England (1628-1644) as a turning point: four volumes setting out a comprehensive view of what English law was all about. In contrast, take Bracton's similar work of 1235, which was the first real analysis of case law in England. Bracton was writing in a context without a general idea of precedent, and where the binding extent of Roman civil law was not clear. By Coke's time that was well established. But they are both trying to make sense of the law as they found it: giving explanations for the data, if you like. (A parallel course was taking place in Scotland with its institutional writers, although they ended up with a different system from England's. They were equally trying to explain what they saw.) Some of the early modern authors contributed to figuring out which decisions of past Parliaments or councils should be taken to be Acts, as such. Coke, in particular, also set out the criterion that an Act should purport to have been made by all three of the King, Lords and Commons. Our modern consolidated versions of the statute book derive from this time, and on legislation.gov.uk you can see the oldest Act still in force, The Statute of Marlborough 1267. That's different from the oldest Acts ever made, as discussed above, a more slippery concept. Ideas such as the separation of powers are reverse-engineered in this way. Indeed, it's not obvious that Britain has that separation. It may not be the right way to understand the governmental and legal order that has developed. John Locke might have thought it would be a good idea, but Walter Bagehot denied it was a useful frame for analyzing the interrelationships of various public bodies. | The rule that all bills die when a Congress ends is an unwritten rule, based on precedent. It is part of a more general rule: All unfinished business dies when a Congress ends. The logic of this rule is simple: Because every member of the House is elected every term, every new Congress is considered a separate Congress. To require a new Congress to take up the unfinished business of the previous Congress would violate yet another, more general rule: “No Congress can bind its successors.” This rule came from England, where it was thought to be a direct implication of parliamentary supremacy. In the US, it is justified either as implied by the constitution, or by practical political realities. What the Congressional manuals say The rule “all business dies” is mentioned in several of the standard compilations of Congressional practice and precedent. These compilations, (available online from the GPO,) include House Practice: However, because past proceedings of one Congress do not bind its successor, business remaining at the end of one Congress does not carry over to the beginning of a new Congress (with the exception of impeachment). Precedents of the House, § 8. Legislative Business of a Prior Session: Each Congress is a separate parliamentary body that comes into being at assembly and terminates upon sine die adjournment. Thus, it is generally the case that business of one Congress does not continue as business of the next Congress. For example, bills and resolutions introduced in one Congress cannot be taken up in a subsequent Congress but must be formally reintroduced. Unfinished business pending at the close of one Congress does not remain unfinished business of a subsequent Congress. Decschler’s Precdents, Ch. 1 § 11, The vast majority of business remaining at the end of one Congress does not, however, carry over to the beginning of a new Congress, since Congress does not allow the past proceedings of one Congress to bind its successor. Few categories have carried over from one Congress to the next; impeachment proceedings pending on the last day of one Congress have been continued at the beginning of the succeeding one, and a Presidential veto message to the House was on one occasion read and received at the beginning of the next Congress. Legislative Entrenchment: Why Congress Can't Bind The idea that one legislature cannot bind a later legislature is known as the rule against ”legislative entrenchment.” This rule traces back to England, where it was first stated by Edward Coke, in his Institutes of the Laws of England, published in 1644. Acts against the power of the Parliament subsequent bind not. In England, the rule was seen as a direct implication of parliamentary sovereignty. Thus, in his Commentaries on the Laws of England, William Blackstone argued that to allow one parliament to bind another would be logically inconsistent with the idea of parliamentary supremacy: Because the legislature, being in truth the sovereign power, is always of equal…absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. Interestingly, during the Revolution, an American colonist, writing as Cassandra, used the rule against entrenchment to argue for independence. He quoted Coke to claim that because no Parliament could bind future Parliaments, any British promise to respect the rights of colonists was not, as the game theorists would say, credible. It is out of the power of the British Legislature to give us security for the future enjoyment of our rights and liberties…Is there safety in entering upon terms of accommodation with a power which cannot stipulate for the performance of its engagements? In reaction to such criticisms of the British system of Parliamentary supremacy, Americans decided to adopt a written constitution. The Americans argued that while a legislature might not be able to bind itself, the people, acting through the Constitution, could bind the legislature. Instead of invoking Parliamentary supremacy, Americans justified the “no Congress can bind” rule by appealing to the Constitution (ie, the electoral cycle + the vesting clause = every Congress is a new Congress, which alone is vested with the legislative power under Art. I, § 1), or to practical considerations (it is impossible for today’s Congress to enforce a binding clause on a later Congress, which could simply pass a new statute). (For fuller discussion of these arguments, see here.) Unwritten Rules in the House Here is what House Practice, Ch. 50. Rules and Precedents of the House, says about Rules Based on Precedent or Custom: Much of what is known as parliamentary law is not part of the formal written rules of the House but springs from precedent or long-standing custom. Such precedent may be invoked to resolve a procedural question in the absence of an express written rule on the subject. More frequently, the precedents of the House are used to show the scope and application of one of its formal rules… On the theory that a government of laws is preferable to a government of men, the House has repeatedly recognized the importance of following its precedents and obeying its well-established procedural rules. The House adheres to settled rulings, and will not lightly disturb procedures that have been established by prior decision of the Chair. However, the Speaker or Chairman may refuse to follow a precedent even though it is relevant to a pending question, where it is the only precedent on the point and was not carefully reasoned. | No Governments have sovereign power. Subject to constitutional and legislative constraints, governments can change laws as they wish. That includes legislative changes and administrative policies. Most governments tend not to use this power arbitrarily because it tends to make investors wary - economists call this sovereign risk. Like any other risk, the higher it is, the greater return an investor expects - countries with high sovereign risk get less foreign investment and pay more for it. Further, most governments don’t make laws that are retrospective but unless there is a constitutional prohibition (like there is in the United States, for example), they can. So Ireland could not only change the rules going forward, they could change the rules that applied in the past (assuming the Irish constitution doesn’t prohibit this, which I don’t know enough about). If Ireland were to change this law, it’s likely there would be plenty of forward notice. The arrangement you spell out between mother and son is not enforceable unless it’s a contract and the presumption is that such familial agreements are not contracts. Such a presumption can be overcome by an explicit declaration by the mother and the son that they intend for it to be legally binding, preferably in writing. Now, governments can and do enter contracts which are enforceable by the courts but that is a one-on-one relationship between a government and a contractor; not a decree that must be followed by everyone. Unless, of course, they are the sort of government that doesn’t follow their own laws - I’m sure you can think of some - but they are huge sovereign risk. | There is no "different legal procedure" for challenging the constitutionality of a law. The only way to do so is through the process that this question contemplates: to argue that the law is unconstitutional in a civil or criminal trial. Whether the law bears directly on the matter at trial or only on ancillary matters such as discovery, the court has the power to find the law unconstitutional and to issue orders accordingly. The extent to which such a ruling binds other courts depends on which court issues the ruling. | why do they sometimes specify the federal law as well as the state/provincial law? Isn't it redundant? Not necessarily. The contract might be entered and/or performed in a different country, whence mentioning only the Canadian provincial law does not override the other country's federal law (or that country's "supra-provincial" equivalent). Mentioning Canadian federal law removes --at least on paper-- the ambiguity of which law applies for matters beyond the scope of Canadian provincial law. In such scenarios, portions or the entirety of the provision might be null and void. For instance, an employment contract might establish waivers which are void or perhaps even unlawful under the legislation of that other country. Please note that in general a copy/paste of sample clauses is strongly discouraged unless the parties fully understand their meaning and implications. |
If when driving, you knock someone's door off, are you at fault? In the UK, if you are driving and a road rage incident with the car in front commences, causing them to step out of their car and leave their door open while they raise either their fists or a weapon at you - if you feel your life is threatened and you accelerate past their car and knock their driver door off, assuming there was no other way to escape - can you be in trouble here with regard to the law? | This Question Is Tricker Than It Seems One of the things about being a non-expert in a field is that it is very difficult to know in advance what is a hard question and what is an easy question. Some questions that seem like they should have simple, straight forward answers are actually very hard to answer. Some questions that seem like they should be very difficult and have involved tricky answers are actually very easy. Without an in depth understanding of the field, you just can't know in advance. It turns out that this particular question is a quite hard question to answer. So, rather than really providing a clear answer, I will explain what about this question makes it hard to answer in this answer. Even this incomplete and ultimately inconclusive answer will require far, far more words (2,078 to be exact), than were necessary to pose the question (94 words). Essentially, the core difficulty is that there are several different principles of law that apply to this fact pattern, each of which, individually have specific things that have to be proved to establish that some legal consequence will follow (which in turn are often themselves intrinsically indefinite), and each of which has exceptions that could also be proved if specific things happen. In part, this is because, while the fact pattern set forth is not freakishly unforeseeable, it is also not a fact pattern that was contemplated when any of the individual legal principles that are implicated were conceived. Likewise, the interaction of these different legal principles in one fact pattern wasn't contemplated and there is probably no one clear controlling case precedent on point that involved this fact pattern. What the law does in cases like these (which come up all the time in real life) is to break down each legal theory individually and analyze it, possibly spread over multiple distinct court cases in different courts in front of different judges. I'll try to unpack the issues (dispensing with U.K. legal terminology in some cases, since I'm only trying to provide a sense of why this is complicated and not to provide a definitive answer to how it is resolved under U.K. law). Possible Claims, Charges, and Defenses; Traffic, Civil, and Criminal It is a crime to threaten someone with weapon or in another way that puts someone at risk of imminent harm. Depending upon the weapon and other circumstances, mere possession of the weapon might be a crime in the U.K. Someone who has been threatened with weapon or in another way that puts them at risk of imminent harm can be a civil lawsuit for money damages against the person making the threat which was called "assault" in historical common law. Someone who has been threatened by another can seek a restraining order/protective order directing that person to stay away from them in the courts in a civil action. Hitting someone else's car is a traffic violation, unless a defense to the traffic violation is present and proven. Hitting someone else's car with a statutorily mandated level of intent is a crime, unless a justification for the crime is present and proven. The person whose car was hit could credibly argue that hitting the door was a mistake, not because the door was hit, but because the driver intended to kill them and missed, so an attempted homicide charge could raised in a criminal proceeding. The person whose car was hit could argue that there was an intend to put them in imminent risk of harm providing a basis for a civil lawsuit for money damages for common law assault. Someone whose car is hit by another car through negligence or recklessly or intentionally can bring one or more claims in a civil lawsuit against the person who car hit their car for money damages. The standard of care for negligence is established by how a reasonable person would act under the circumstances. Self-defense is a possible defense to traffic offenses, criminal charges and civil liability related to harming another's property if the conditions for self-defense apply, which include a risk of imminent harm to oneself, another, or one's property, and if the action taken in self-defense is reasonably proportional under the circumstances as evaluated by a reasonable person in response to the threat. But, if the response of the person making the threat with the weapon was as a result of actions in which the person threatened with the weapon was the true aggressor, then the privilege of self-defense would be forfeited. In real life, good attorneys for the parties could almost certainly solicit and call attention to additional facts not mentioned in the question that would further muddy the waters and raise additional claims, charges, and defenses to claims beyond the ten listed above. I could analyze each of these issues on the facts in depth as best I could with references to statutes and case law (under a body of law other than U.K. law anyway), which would take a few lengthy and heavily researched paragraphs each that would take a fair amount of time each to prepare, but I won't. A full analysis would help you weigh the odds a little better, and if I was a lawyer of a party in this situation, I would do that since every little edge counts in litigation and negotiations of settlements. But even if I did that, it would still leave a lot of uncertainty regarding the final resolution of these questions on the merits. Decision-Making Regarding Bringing Claims The traffic and criminal charges would be brought or not brought largely in the discretion of the Crown attorney or some other government official. It is most likely that a government official making that decision is doing so because the offense was referred to them by the police officer who responded to the scene, or a police officer who received an informal complaint (as opposed to a civil court filing) from one of the parties, or through a complaint delivered directly to the prosecuting authority by an alleged victim. A prosecutor doesn't have to bring claims just because someone asks them to, and doesn't have to bring all possible claims even if some are pursued. The parties themselves would decide whether or not to bring civil claims against each other. Whoever is sued first would make the decision in the context of knowing that they will be a party to a civil lawsuit whether or not they bring civil claims of their own. Possible Forums The traffic offense would probably be resolved in one court. The criminal charges against the person making the threats would be resolved in another court. The criminal charges against the person who hit the car door would be resolved probably in the same court but in a different case, possibly with a different judge. The civil claims would be resolved in yet another court, probably with a different judge, although probably in a single case with the first person to make it to court as the Plaintiff and the other party as a Defendant bringing counterclaims against the Plaintiff. The civil claims might also involve other parties (e.g. the owner of the vehicles in question if not identical to the persons driving the cars at the time of the incidents). Issue Preclusion Some final decisions on the merits in some cases would resolve the outcome of other cases as a matter of law, other final determinations in some cases would not be binding on the other cases as a matter of law because burdens of proof are different, or the legal issue evaluated is not identical, or because other rules (like a rule against a traffic court decision resulting in a binding determination on civil liability for negligence) would apply. The exact rules are rather arcane and there are quite a few permutations of how it come up, but it is important to be aware that these kinds of rules are out there, exist, and would have to be analyzed by the parties as a matter of litigation tactics. Even The "Legal Issues" Are Fact Intensive Inquiries Almost all of the legal theories implicated above involve broad legal standards in which a lot of the substantive question of what is or is not legal is delegated to the finder of fact in a manner that cannot be reviewed on appeal. For example, in a negligence case related to damage to an automobile, even if there is a videotape and there is 100% agreement on precisely what happened, whether that conduct constitutes "negligence" that breaches the duty of care owed by a reasonable person to the general public to protect them from harm, is legally considered a "question of fact" to be determined by a judge on a case by case basis, rather than a "question of law" which will always have the same outcome and is subject to review by an appellate court if the judge gets it wrong. A similar "reasonable person" standard which must be resolved with a highly fact intensive inquiry that could be resolved more than one way by two different judges or juries hearing precisely the same facts and finding the same witnesses and evidence to be credible in exactly the same way, with both upheld on appeal, applies to the self-defense legal theory. This self-defense issue could also conceivably, based upon the order in which cases were tried and their resolution, be resolved one way in a criminal case and a different way in a civil case between the parties. In the same vein, when a threat is imminent is a highly subjective determination that could be resolved in a "legally correct" way that is not subject to being overturned on appeal on precisely the same facts, with precisely the same determinations as to credibility and weight of the evidence, by two different judges or juries. Again, the substantive question of whether particular conduct is or is not illegal is a "question of fact" that can't be resolved in the absence of a trial on the merits in a particular case before a particular finder of fact. Bottom Line The facts provided in the question aren't sufficiently detailed to provide a definitely correct answer to this question. Indeed, the nature of the facts is such that even an perfectly detailed factual statement regarding what happened might not be enough to definitively determine who has civil liability to whom, and to determine what charges each defendant is guilty of. Different judges and jurors could reasonably come to different legally correct conclusions in a case like this one when faced with precisely the same facts and resolving all issues of credibility and the weight of the evidence in precisely the same way. This difficulty is compounded by the fact that the same facts would be analyzed with respect to different legal theory analysis in different forums by different people, when there is not, as a general rule (although there is in some cases) any mechanism for compelling those decisions to be made consistently on outcome determinative evaluations of the same facts regarding what was reasonable for the parties to do under the circumstances. The notion that a judge is just an umpire, and that every competent judge acting in good faith will always resolve a case presenting the same facts in the same way is a myth. This simply isn't true, even in the U.K. where the judiciary is (as a consequence of how the system for appointment and retention of judges is designed) not nearly as partisan and politicized as it is in the United States. The outcomes of even fairly simple cases in many cases, like the one in this question, are intrinsically and irreducibly uncertain in common law legal systems. The range of possible outcomes from a best case scenario to a worst case scenario, for each party in this fact pattern, is very wide. A desire to tame the myriad uncertainties involved for all parties, and the desire to avoid multiple time consuming and uncertain court proceedings arising out of the same incident, is one of the reasons that it is very common for civil lawsuits to settle out of court without a trial, and for criminal cases to be resolved by an agreement of the prosecution and the defense (sometimes reached even before charges are filed). | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | I think it would depend on how a jury viewed the "challenge" to her audience. The general rule for self-defense in Texas is that the person needs to reasonably believe that force is immediately necessary to protect herself from someone else's use of force. I think a jury would find it reasonable to believe that someone forcefully attempting to steal your gun was planning to use it against you. More importantly, the law generally presumes that that belief is reasonable if the person is being robbed, assuming that she isn't otherwise engaged in criminal activity. Since openly carrying an AR-15 is -- as far as I know -- legal in Texas, I think she'd probably be fine. But: The law also says that the use of force is not justified when a person consents to the other person's use of force, or if the person has provoked the other person. So now you have the question of whether the student's challenge constitutes a provocation or consent to the use of force. I think you can make a decent argument for provocation, which means that "the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury." Neal v. State, No. 12-14-00158-CR, 2016 WL 1446138, at *11 (Tex. App. Apr. 13, 2016). You might also make out a decent argument for consent, which doesn't necessarily seem to require that the parties exactly spell out the rules of engagement, just that there is some kind of agreement between the two parties. In one case, for instance, a defendant tried to argue that a fight had gone beyond the rules because one party used a chokehold and knocked the other out. But the court said that the only actual rule agreed to was that there would be no weapons used. Padilla v. State, No. 03-07-00513-CR, 2008 WL 5423139, at *2 (Tex. App. Dec. 31, 2008). That makes me think that as long as there's consent to some kind of fight, you don't necessarily need rules, though you do need to abide by them if you agree to them. So what's the scope of consent in this case? If we say that she's agreed to the use of force by challenging people to take something from her, and she hasn't said how you can do it, can you do it by any means you choose? I don't think a court would let someone shoot her to get it, but maybe they would be allowed to pry it out of her hands. So all of that is a long way of saying that this is a tricky question, and that any decision would probably depend a lot on the specific facts of who she was talking to, what exactly she was saying, how she was carrying the gun, and so on. | I think it's important to keep in mind the essence of your actions. @Mowzer gave a great answer on the matter in hand, but I'd like to add a point of view. Is it illegal to eat while driving? Like pointed out by @Mowzer, if no law prohibits it, it's allowed by default (lots of countries have this premise). But what about the consequences of your actions? Maybe there's no law against eating in the car, but there sure is one in my country that specific says that you are not allowed to drive without using both hands in the wheel. The only exception to this rule is to take out your hand from the wheel to use the stick to change gears. Another point of view to add is the liability. Let's say you're minding your own business while driving and a lunatic trying to commit suicide jumps in front of your car. It's a pretty straight-forward case, you have no reason to be blamed. Now, let's add to the same scenario your snack; with a small change, you are now facing a accident that may have been caused by reckless driving (another thing commonly illegal). To sum up, the law is not really like math that have axioms that determine true or false statements without any distinguishment. That's why every case is single handled in the law by it's particularities. | Deliberately causing an accident is illegal. However, in some (probably many) jurisdictions there is a "necessity" defense against criminal charges. In Washington it goes like this: Necessity is a defense to a charge of (fill in crime) if (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; (2) harm sought to be avoided was greater than the harm resulting from a violation of the law; (3) the threatened harm was not brought about by the defendant; and (4) no reasonable legal alternative existed. The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge]. It is possible, if B is attempting to kill the pedestrian, that you have defense of others available as well. | I couldn't find any decisions on CanLII where someone was punished for a fictitious or out-of-province front plate in Alberta, however the Traffic Safety Act states the following: 1(1)(s) “licence plate” means a licence plate that is issued under this Act and includes an object that is recognized under this Act as a licence plate; (9) For the purposes of sections 1(1)(rr) and 11.1 and Part 8, licence plate includes a licence plate issued in another jurisdiction. 53(1) Except as otherwise permitted under this Act, a person shall not do any of the following: (b) display on a motor vehicle or trailer a licence plate other than a licence plate issued or authorized for use on that vehicle; (c) operate or park a motor vehicle or trailer on a highway with an expired licence plate displayed on it; (Part 8) 168(1) If a peace officer has reasonable grounds to believe (a) that a vehicle is displaying licence plates that (i) were not issued for that vehicle . . . the peace officer may seize and take possession of the licence plates displayed on that vehicle. 169(1) A peace officer may arrest a person without warrant if the peace officer, on reasonable grounds, believes . . . (2) For the purposes of subsection (1), the following are the provisions for which a person may be arrested without a warrant: (c) section 53(1)(b) relating to the displaying of a licence plate other than one authorized under this Act; While the connection of the extended definition in s.9 to s.53(1) is a little vague, the connection to Part 8 is not, and therefore I can confidently say that the Act clearly states it is a violation to use out-of-province plates on the front of a vehicle. The plates can be seized and you may be arrested. It may further be a violation of the BC Motor Vehicle Act if/when you travel there. | The policeman ordered, right as he took a step out of his car "Turn it off!" - which is a lawful demand to prevent the biker from possibly kicking the gas and running. As the driver did not seem to comply (from the policeman's PoV) during his walk over to the bike, he enforced the order himself by turning off the bike and confiscating the key for the moment. Having made it safe that the driver couldn't leg it, he guided traffic around him so he could get to the side of the road. We don't know what happened after the driver reached the curb to be lectured and/or arrested, the bike could be impounded or the confiscation might be temporary. So all we can do here is discuss the action of demanding that a motor vehicle be turned off, the doing of such and taking the keys. Demanding a vehicle to be shut off is standard procedure in police stop, as it is ensuring the safety of everybody involved. In a somewhat recent case (trying to find it again!), a driver did not shut off the car and had to stand on the brake to keep it where it was. As commands came conflicting (keep your hands where we can see them, get out of the car!) and he could not comply or the car would jump forward and ram somewhere, things escalated and the driver was shot. But back to the first step. Was the stop lawful? ACLU in NY tells us: Police may stop and briefly detain you only if there is reasonable suspicion that you committed, are committing, or are about to commit a crime. Don’t bad-mouth a police officer or run away, even if you believe what is happening is unreasonable. That could lead to your arrest. There was a crime committed: Splitting is illegal in NY (among others: Section 1122, overtaking on the right), so the stop was justified under NY CPL 140.50. From my own experience, it is not uncommon for bikers to try to evade police by swerving back into traffic and using their higher mobility to get away. On its face, this makes it reasonable to demand the bike be shut off as the policeman advanced, and I'd like to congratulate the officer for taking the less escalating step and just turning the bike off himself on the noncompliance instead of drawing his gun and possibly escalating it to a use of force. Most lawyers suggest to drivers pulled over to do things akin to "After you brought your car to a complete stop [on the curb], roll down your window and shut off the engine". Like this one. Possibly confiscating the keys might be an overreach by the policeman, but the demand to turn it off clearly is not. | I suspect that you would not be convicted in the present case, because the jury would be sympathetic to the plight of the person being dragged out and unsympathetic to the behavior of the draggers. However, we should set aside the emotional elements of a jury trial and focus on legal principles. The basic question is whether a person has the right to use force to defend against an unlawful battery: "a person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another". This right to defense also extends to defense of others. But it has to appear to be to unlawful, which is to say, you have to reasonably believe that the force used against the victim is unlawful. If a couple of thugs try to drag a person away, then an observer probably has a reasonable belief that this is an unlawful battery. But if a couple of police officers are observed dragging a person away (arresting him), apparently acting officially, the force used (up to a point) is apparently lawful and would not constitute battery of the victim. For defensive force against police to be lawful, the forced used by the police must be excessive. The outcome then depends on what a reasonable person would conclude (this is where the jury or judge makes a rather subjective decision). If a reasonable person would conclude that the assailants are acting lawfully in arresting the person, then a higher bar must be clear to justifiably use force in defense of others. Wearing a jacket that says "Police" favors the "appears lawful" side (though if you happened to know for a fact that the person wearing the jacket is not a police officer, then the "police exception" would not be applicable). In the relevant case, the facts point to the appearance of a lawful arrest (even if were to turn out to be judged unlawful). In the case that this is an apparent arrest, it would have to be the case that a reasonable person would find the force used to be excessive. Generally speaking, force used by officers is held to be reasonable, except in some cases where it is not. See for example the matter of Eric Garner, where the officers involved were not indicted. On the third hand, in this case, it might matter what the actual legal status of the "officers" is (they are not Chicago police). |
What legal basis existed or may have been argued in defence, as to why the "Colston Four" should be acquitted? In this weeks UK news, we read that the Colston Four were acquitted. For those unaware, these were four individuals who played an active role during BLM protests, in pulling down and dumping in the water a prominent and contentious statue of someone who had profited from the slave trade on Bristol, UK. They were charged with criminal damage and acquitted. I'm not interested in the rights and wrongs of the case, and personally, it was a monstrous statue and unfit as a landmark. But in law, that's irrelevant. The legal situation is that clearly, unauthorised damage to third party property occurred, clearly there was ample evidence these people either did it, or aided and abetted it, or knew or should have known it was likely if they roped the statue or brought rope and gave it to others, or were reckless to the fact. Right or wrongly, the CPS decided that prosecution was in the public interest and I don't recall that being specifically the angle it was defended upon. In such a situation, I'm intrigued, short of jury nullification, how a trial could end in acquittal (however deservedly). What legal arguments were made, that mattered at all, and that a judge wouldn't rightly direct to be irrelevant and should be ignored? I've read the blow-by-blow account of trial proceedings, and I'm still at a loss to understand what happened. We can never know what went on in a jury room, but perhaps someone can shed light on what legal premises and theories could even be relevant to acquittal (as opposed to mitigation), in this very specific controversial case. | In order to prove criminal damage, the prosecutors had to show that the four individuals Destroyed or damaged property [= the statue] The property belonged to another [= Bristol City Council] They intended to do so, or were reckless as to whether that would happen They had no lawful excuse They evidently failed to convince the jury of the combination of these facts. (Some members of the jury may have thought differently about different ones, or they may have applied their own idiosyncratic reasoning.) For their part, the defence contested (1) and (4) by specific arguments. Against damage to the statue, they argued that it had increased in value by virtue of its participation in a historic event. They also advanced some novel arguments that they were attempting to prevent a crime - either the public display of indecent matter or of a visible representation which is threatening or abusive. For this defence, it doesn't matter whether that was actually a crime, just whether the defendants honestly held the belief that it was, and that they were using what they believed to be reasonable force to prevent the crime. They also invoked a specific lawful excuse mentioned in the relevant Act, that each of them believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances. The argument was that they honestly believed that the statue belonged to the people of Bristol as a collective, and that the people of Bristol would generally be in favour of their actions. Finally, the defence made a human rights claim on the basis of free expression, saying that their conviction would be a disproportionate interference with those rights. This is about weighing up the public interest in property rights and public safety on the one hand, and the defendants' right to act in accordance with their conscience on a matter important to them. The judge allowed all these defences to be made, and it was the prosecution's job to make the jury sure that the elements of the offence were proved, despite whatever the defence made out. There was some specific guidance given to the jury to help them understand the nature of the arguments and what had to be proved, and ultimately it was up to them to consider everything privately and come up with their answer. | When you say "blanket immunity," I assume you're talking about transactional immunity -- the witness cannot ever be prosecuted for any crimes they testified about. This immunity is actually broader than that required by the US Constitution (although some states do require it). However, if it's provided, it absolutely covers crimes connected to what John is accused of. One very common use of immunity is to give a co-conspirator immunity to testify against another co-conspirator being charged with conspiracy. If transactional immunity wouldn't cover that conspiracy charge, it would pretty much defeat the purpose. | You asked, "could that guy as defendant claim self defense and win?" First let's try to make it clear what is meant by "win". In the Rittenhouse trial, the defendant was charged of the following crimes: First-degree reckless homicide First-degree recklessly endangering safety (x2) First-degree intentional homicide Attempted first-degree intentional homicide Possession of a dangerous weapon by a person under 18 (dismissed) Failure to comply with an emergency order from state or local government (dismissed) Rather than thinking of the defendant as a "winner", it might be more appropriate to say that he was "acquitted" of these charges. If someone that was involved in the conflict fired first, as you described here: "They encounter each other when each is leaning or reaching or tripping, or whatever it would take for them to unintentionally point their gun at your head. You react and you raise your gun in defense, he spots your move and points his at you. You both fire. You shoot each other and you both are gravely injured. Like, paralyzed", then would they also be acquitted of all of the non-dismissed charges listed above? If everything was as you described ("unintentional", "reactionary", and "in defense"), then likely they would also not be found guilty of those crimes. It's not like they would "win", it's more like they will not be found guilty of committing one of those crimes. The precise outcome will depend on all the facts involved in the case, and the jury's decision based on those facts. So there is no single answer that always applies to every situation, but it sounds like you're wondering about some hypothetical situation that appears to be paradoxical because in this case only one person was charged with crimes: if someone else was the first shooter, the sequence of following events would first of all depend on whether or not they got charged with a crime, and I wouldn't characterize the outcome as a "win" or "lose" but as an "acquittal" or "conviction", and yes it is possible to be acquitted if everything is "accidental" as you described, and presumably not "reckless" (often meaning that a reasonable person in the same situation would have done the same thing). About your more broad question: "Is mutual self defense a thing?" It depends on what crime is being charged against the defendant. In the Rittenhouse case there was only one person that was charged. If you're asking about a hypothetical situation in which two people involved in a 1-on-1 conflict both claim self-defense, I hope I can assume that they were both charged with a crime against which to defend themselves in court in the first place. It is indeed possible for a State to prosecute both parties of a 1-on-1 physical conflict, and for both of them to successfully claim self-defense in order to eventually be both acquitted. It wouldn't be called "mutual self-defense", but each defendant would make their own self-defense case individually. | In California (as in all states) there is a justifiable homicide defense which might be used in such a situation. For the force to be justified, you have to reasonably believe you are in danger of being harmed, that you need to use force to avoid the harm, and you may only use the minimum force necessary to eliminate the threat. It then is a matter for the jury to decide whether those principles were followed in your particular instance. The reason why it's hard to predict the outcome is that it depends on a subjective evaluation by the jury, as to whether the shooter had a reasonable fear and whether lesser force was a viable option. The jury's decision is guided by instructions to the jury (#506, #506) which focus on relevant distinctions. The jury will be told that "Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be", and that you have to reasonably believe there is "imminent danger of great bodily injury". My evaluation is that that does not describe the scenario in the question. There is some possibility of future harm... but not imminent harm. People v. Ceballos (1974) 12 Cal.3d 470" states that "the rule developed at common law that killing or use of deadly force to prevent a felony was justified only if the offense was a forcible and atrocious crime" and "Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery", and that could support application of a justifiable homicide defense in a bank robbery. But in the present instance, the bank is being robbed and the shooter is a by-stander. Despite all of the bank robberies in California, there is no relevant case from which one could draw an analogy. | Your question slightly misrepresents what the article says: Yes, the judge denied the motion which led to the collapse of the case, he did not make a ruling on the substance of the case. The distinction is significant to my mind as the judge was using non-evidentiary knowledge (i.e. what he read in the paper) to make a decision on process; in this case a process that would have put a lot of people to a lot of inconvenience. It would not be proper for the judge to have used such knowledge to inform a judgement. It is also not clear from the article if the academic paper in question was actually introduced by the defendant as evidence. If that was the case then it is only right and proper for the judge to consider it. As to why a judge is allowed to read the news and a jury is not, I can offer several ideas: A judge must document their reasoning process in a judgement which is subject to review - if they were to make a decision based on matters not supported by the evidence then an appeals court could correct it. Alternatively, juries are specifically prohibited from revealing their reasoning process to anyone. Judges do their jobs for years, perhaps a whole career - to prohibit them from consuming media is a) unworkable and b) a serious impediment on their lifestyle. Juries are empaneled for weeks or months - such sacrifices are more reasonable. Judges are (supposedly) trained and impartial professionals who are more readily able to make the distinction between evidence and news. Newsworthy cases are relatively rare | Under U.S. law, double jeopardy prevents you from being charged with the same charge twice, and also from being charged with any offense which is a lesser included offense of the charged offense, or a charge so substantially similar that for constitutional purposes it amounts to the same crime. Basically, the test is whether a prior acquittal would be inconsistent with a new criminal charge. For example, even though there is an additional element of the crime of murdering a postal officer to the crime of murdering someone on federal property, double jeopardy would probably bar a retrial of a murder on federal property case simply because the victim happened to be a postal worker and that element wasn't charged in the original indictment. This is because the acquittal of the first murder charge would almost always imply a jury determination that a murder didn't take place which would be inconsistent with a murder of a postal worker charge. On the other hand, a trial on a murder charge would probably not bar, for example, a trial on a burglary charge (which at common law involved trespassing with an intent to commit a crime), even if the burglary charge arose from the same conduct. This is because an acquittal on a murder charge isn't necessarily inconsistent with the existence of a trespass, or with the intent to commit some crime other than the murder for which the defendant was acquitted. But the exact way that the line gets draw is tricky and while what I have described is a good general summary of the cases interpreting the double jeopardy clause, it isn't a perfect one. This issue has been litigated many, many tines over the years, so there are a lot of cases that are squarely on point addressing specific fact patterns in precedents that are binding case law that are not always a perfect fit to the general principles. In these circumstances, the binding case law is going to control, at least until a court with appellate authority over the court whose case established the precedent in question decided to overrule a prior precedent from the lower court, or in the case of U.S. Supreme Court precedents, until the U.S. Supreme Court revisits one of its own prior precedents as wrong decided or wrongly interpreted, which happens now and then, although it is a rare event. | The problem with Solution 2 is that government officials in the United States enjoy qualified immunity with respect to actions that they did while acting under color of law. It's not total immunity, but if they do things by the book, they cannot be prosecuted even if something goes wrong (even when doing things by the book, Police deal in very volatile situations and things can still go wrong because of an X factor to specific for the training manual to cover.). In other cases, it may be because multiple officers are working the scene and Office A lied to Officer B about the situation. Consider Officer A pulls over a suspect and realizes it was someone who was suspected of a crime, but couldn't prove it. He calls for back up and Officer B arrives. Upon arriving on scene, Officer A tells B to search the trunk of the car despite the fact that A had not received consent from the suspect nor has a warrant, nor cause to make a search of a trunk of a vehicle. B makes the search and finds [the bloody knife/the stash of drugs/the smoking gun/the match to a child's shoe that was missing from the kidnapping scene/ insert other incriminating evidence]. Under system (2), since it was Officer B who made the illegal search, B would be liable for it, even though Officer A lied about having legal reason for a search of the trunk space. But what's more... if the evidence is gonna be used anyway, what's to stop the cops doing it again? After all, there is very little recourse for those who are illegally searched to contest this in court (If I'm illegally searched and don't have anything on me, I have to take this to civil court, which is a different animal than Criminal Court and exposes me to broader Discovery... aka gives the cops free reign to search my property for a hell of a lot more illegal things.) or just sit back and count my 4th amendment rights (the section of the constitution protecting against unwarranted search and seizures) as worth less than the paper they're printed on. Oh, and by the way... that second word seizure... that means that they will be taking my property (or myself if they arrest me) and will not be giving it back for some time while they process it... if it's a legal to hold item (like my laptop that I do work on) that's going to make it harder for me to do my job which injures me further in lost business and income. In other cases, it could be they have a warrant for a large item (a stolen big screen tv) and while searching for it, open my sugar bowel and find evidence of a crime unrelated to theft of the television (i.e. opening a baggie of weed). This is actually an illegal search because, unless I am a wizard, a Time Lord, or Mary Poppins, there is no reason why a container smaller than a big screen TV should ever be searched when looking for a Big Screen TV and the cops should logically see this as out of bounds of the search warrant. The nature of this is damaging before the legality of the search can be determined, and because the search may have been out of scope of the warrant that was otherwise justified, the rule of making the evidence of a crime inadmissible was held in order to prevent LEOs from doing this because they could. This rule also started to take formation prior to the Revolutionary War. British Law had ruled against compelled confessions being inadmissible as evidence in 1769, a full six years before the Revolutionary war started (1775) and seven years before the publication of the Declaration of Independence (1776). Now there are some exceptions that can get the evidence brought back in, such as plain view ("The suspect's vehicle is a pick up truck with an open bed, the murder weapon was lying in the bed covered in blood"), inevitable discovery ("We have developed evidence by other means that would have lead us to this evidence legally") and Exigent Circumstances ("We believed someone inside the property was in grave danger if we did not enter the property immediately and that's when we found a cache of stolen Big Screen TVs!) and Good Faith (the Warrant was authorized for the wrong street address of the target but we found the evidence of an unrelated crime in a place the warrant authorized us to search. Everything but the goofed up address was done by the book.). | If the question asks, "did you do X" where X is or includes a crime that you could be criminally prosecuted for, you can invoke the 5th amendment in refusing to answer that. I have seen that done and seen that objection to the question sustained in court. However, if admitting to X would provide only civil liability, then the 5th would not apply. At trial, you may also have to take care not to give direct testimony on things that are so closely related that you "open the door" to being required to answer that question. For example, you can't say "I don't owe because I did X" and then expect to not have to answer "So just to be clear, did you do X?" Also, depending on context, invoking the 5th might cause a jury to view your testimony more skeptically (cpast points out that "For civil cases, adverse inferences based on pleading the fifth are totally okay"), and if that's going to come up you should ask your attorney about whether or not it'd be a good idea strategically. |
In Germany, is it allowed for an employer to ask an employee to quit his job and threaten to find a critical error to end the contract immediately? My employer threatened me verbally, saying that he/she will search and find a critical error, in order to end my employment contract immediately, if I don't end the employment relationship from my side. Is it fine to threaten an employee like this? Otherwise, what are the consequences? Additional info: Company location: Berlin, Germany Company size: 11-50 Employment relationship duration: 4 years | Your employer is most likely bluffing. It is better to be fired than to quit voluntarily. The problem with quitting voluntarily is that you won't get unemployment benefits (Arbeitslosengeld I) for a while. So don't quit voluntarily if you aren't keen on living from savings for three months. If you want to quit, get another job first. (You should get another job anyway instead of working for a toxic employer.) Your employer can only terminate your employment under certain circumstances, and with certain notice periods. Germany is very employee-friendly. Your company's establishment is currently large enough that the Kündigungsschutzgesetz (KSchG) applies. To be clear, it doesn't matter how large the company is overall, only how many employees there are in the office, shop, or other place of business. Part-time employees are counted partially. Contractors are counted as well. The KSchG fully applies if there are typically more than 10 (11 or more) employees. The KSchG does not apply to company leadership, e.g. C-level executives. Under the KSchG, the employer can terminate employment for one of three reasons: reasons in your person, reasons in your behavior, and operational reasons Personenbedingte Kündigung: Your employment can be terminated for reasons in your person if you are unable to carry out work in the future, for example if you need sick days so frequently that this puts an unreasonable burden on the employer. It is generally impossible to use this reason without the normal notice periods. Verhaltensbedingte Kündigung: You can be fired for reasons in your behavior if you committed some gross misconduct. Typically this requires an Abmahnung (written warning) so that you have opportunity to cease the problematic behavior. For example, you might get an Abmahnung the first time you skip a shift, and get fired the second time. In especially severe cases of misconduct, it is possible to skip the Abmahnung and/or the notice period and to fire an employee on the spot. For example, this might happen if you embezzled funds or stole your employer's property, even if the monetary damage was very small. As such dismissal with cause stems from your behavior, you would not get unemployment benefits for three months. Betriebsbedingte Kündigung: If the company has to downsize for economic reasons, it can lay off workers. However, the employer must apply social criteria for selecting the employees to lay off. Factors are: the length of employment, age, support obligations for children or other dependents, and disability status. That is, a young, new, childless and able-bodied employee is more likely to get axed. If you have a union (Betriebsrat) they can veto a termination in certain cases. These criteria can be clarified via collective bargaining agreements, but cannot be circumvented in an individual contract. So your employer will not be able to find any error in the contract that will allow them to fire you. The best they could do is to go really carefully over your application and paperwork to find any misrepresentation, and use that as the basis for a Verhaltensbedingte Kündigung. However, it is quite unlikely that they will find a misrepresentation so severe that it could serve as grounds for firing you without notice. Minimum notice periods are given in law. The minimum is one month notice. Your contract cannot have a shorter notice period in your context. In case of a dismissal for exceptional reasons (e.g. theft), no notice period is necessary. If you are terminated, go to a lawyer. You only have three weeks to file a lawsuit. Contacting the lawyer should be the second thing you do after getting fired, with the first thing being the registration with the Arbeitsagentur to start the clock for unemployment benefits. If your employer is making unprofessional threats like claiming that there could be a “critical error” in your contract, it is quite possible that the termination notice could be deficient in some way. If the dismissal was improper, a court can award compensation (lost wages) and reinstate the employment, though this is unlikely to be desired. Your wage from subsequent jobs (or wages you could have earned if you had looked for a job) will be subtracted from the lost wages. To summarize this large text dump, firing an employee is difficult unless the employee does something very stupid like stealing from the employer. Therefore: reasonable employers that want to get rid of an employee don't look for errors in the contract. Instead: They watch you very closely to find any behavior that merits a written warning (Abmahnung). This builds a case for a termination with cause. They offer an agreement to terminate the contract (Aufhebungsvertrag). With such an agreement you mutually terminate the employment. You won't get unemployment benefits for three months since this was your decision, so typically these agreements provide for generous compensation. A reasonable employer knows that paying for the notice period + additional compensation is cheaper than dealing with an unhappy employee + a potentially invalid termination + a prolonged legal battle. Of course, less reasonable employers resort to bullying to get you to quit yourself. This is cheaper than paying compensation with an Aufhebungsvertrag. | united-states The Thirteenth Amendment forbids slavery and involuntary servitude except as punishment for a crime. This means that, outside of unique situations like the military, an employer cannot keep you as an employee against your will. Any contract that denies you the right to quit your job is illegal. A contract might require a reasonable notice period or something along those lines, but it cannot bind you to work for the company for as long as the company wants. While you can sign an employment contract without it being involuntary servitude, the Thirteenth Amendment is also generally read to mean that your employer can only sue you for money if you refuse to work. A US court cannot order you to work for an employer and threaten to hold you in contempt of court if you refuse. This doctrine predates the end of slavery, but the Thirteenth Amendment is among the reasons now cited to justify it. | Yes, this is a valid concern As written, every piece of IP you produce while employed belongs to the employer. This includes your hypothetical game. It also includes your weekly shopping lists, your Christmas card to your Great-Aunt Nellie, the … a-hm … private video you make of you and your significant other. As written this is overly broad and probably unenforceable. However, it’s always better to have clear and legally enforceable clauses in your agreements because unclear, arguably unenforceable ones lead to disputes. To be fair, the employer has probably lifted some (bad) boilerplate and hasn’t actually thought through what it means. Get it redrafted. | If by "hire a worker" you mean hire you as their employee, then no. And that has nothing to do with Iran or sanctions. See https://expatriates.stackexchange.com/questions/23844/can-i-work-remotely-for-a-german-company-from-india-being-an-indian-citizen and just replace "India" with "Iran", or really "any non-EU country". The only way you can legally sell your work and get money from a German company in Germany when you don't reside in Germany with a German work permit is being an independent contractor or company and invoicing the German company for services provided. Whether this contract would be targetted by sanctions is a matter of that specific contract. It might depend on what work you do, and what you need to be given access to, while you work. That said, what a company legally "can do" might still not be what they do. Hiring a lawyer to navigate this (because people on the internet are not the best source of legal advice) might well exceed any benefits they have from hiring you. Even if it is legal in the end, it might still be too costly. Your best bet here is a company that already has dealing with contractors from Iran, already has lawyers for this on payroll and knows how to navigate this legally, not only in theory, but with their specific business dealings and services. In case you are actually asking on behalf of the Germany company, you should already know all this. You should also know that the real answer is "get a lawyer". But just in case you are just curious and want a sneak peek, you can go to the website of the "Bundesamt für Wirtschaft und Ausfuhrkontrolle" and see what they say and how your specific company and the specific contract you have in mind plays with the regulations. Warning: there is no easy answer I could summarize here, it is multiple pages of references to applicable laws and regulations. https://www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/Embargos/Iran/iran_node.html If your company has dealing with other nations, especially the US, you may want to check their conditions as well. Even though it might be legal in Germany, that does not really give you any protection from other countries sanctioning you in their juristiction or simply not giving you any further contracts because you don't play by their rules. | Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract. | are contract terms enforceable that say the employee has to pay the employer if they leave without giving notice? Yes, as long as the penalization is not of punitive nature. The doctrine of at-will employment is only the default condition, but a contract may supersede it. As for the extra question, reciprocity of sanctions (as in leaving without notice) is not a requirement for enforceability of a contract. In general, the lack of reciprocity only signals that there is a difference in the parties' bargaining power, but usually that does not affect enforceability. | The other answers are correct that you should speak to a lawyer, but you should expect your lawyer to tell you that you don't have a viable lawsuit. I can't speak to Pennsylvania law, but these facts would make a pretty weak claim for sexual harassment under Title VII of the Civil Rights Act. To win a hostile-work environment case, you must demonstrate: you suffered intentional discrimination because of your sex; the discrimination was severe or pervasive; the discrimination detrimentally affected you; the discrimination would detrimentally affect a reasonable person in like circumstances; and the existence of respondeat superior liability. Minarsky v. Susquehanna Cty., 895 F.3d 303, 309 (3d Cir. 2018). Your main problem will be in proving that the harassment was so "severe or pervasive" that it altered the terms of your employment. This is not as high a bar as it used to be, but the courts will not grant relief for "isolated incidents" unless they are extremely serious. Such incidents typically involve some kind of forcible, physical, sexual contact, which I don't see here. The general rule is that the more severe the harassment, the less frequently it needs to occur, and vice versa. Unfortunately, courts would probably look at the events you've described -- not physical, not sexually explicit, not threatening, not intimidating, not soliciting sexual conduct, not mocking you -- and say that they are not particularly severe. Given the lack of severity, the court would need to see them happening with pretty regular frequency, but you've described only two events in the course of about 18 months. And with one of those, the employer appears to have taken reasonable corrective action, leaving you with only one incident to complain about in however long you've worked there. Even if a court agreed that your co-workers engaged in unwanted sexual conduct, I'd expect the employer to be able to successfully invoke the Farragher-Ellerth defense, which permits them to escape liability if they can prove: that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Since they took corrective action when you reported harassment, and you did nothing to report that there were problems even after the discipline, and did nothing to report that you felt harassed by the second incident, the Farragher-Ellerth defense would probably be successful. | Washington State is an "At Will" employment state meaning that, with exception to some protected classes and bargaining, the employer may terminate the employee for any reason the employer can cite, or no reason at all. If the firm used it as a benefit of the job but it wasn't agreed upon on the contract, its not a deception as if you can hold the job to the down season, you have less work to do. If a promise was made for employment into the down season during the negotiating of the job, and this was documented, it could be. It could be that he did all the work required of him, but another higher went above and beyond and he got the ax because he was the newest and the lesser performer. Either way, the employer is well within their right to fire an employee for any reason they choose absent discrimination based on protected class status. |
Is it obligatory to make my name and address known publicly in compliance with Art 13 GDPR? I'm a private individual. I live in EU. I'd like to create a personal blog on blogger.com and put there Google AdSense advertisements. Do I have to state there also publicly my given name, surname, and my personal address where I live according to Art 13 GDPR? | 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. | No. Refusing to tell the address alone is not a reason to detain somebody. But there are situations where the authorities can demand that a person identifies himself or herself, including such details as the address (or lack of a permanent residency). In such a situation, failure to identify yourself can get you locked up. Also, the tone of your posting seems to question the legitimacy of the UK government and legal system as a whole. That is a box you're putting yourself into, and the company you find there is not very pleasant. | No, a company cannot suspend your GDPR rights – contracts can't override the law. Your rights as a data subject apply as long as your personal data is being processed. However, there is no requirement in the GDPR that they fulfill your data subject rights through a self-service mechanism like a “download my data” button. They can require you to use another support channel. (But Google offers infamously bad support.) In some cases, the service may legitimately decide that they cannot give you access to the data, for example if they believe that you are not the actual data subject (e.g. if they think that you hacked the account). The right to access must not adversely affect other people (Art 15(4)). If they have doubts about your identity, they can require further information to verify you (Art 12(6)). If your requests are excessive or unfounded (if you are spamming them), they can also turn down the requests (Art 12(5)). | Per GDPR Art 79, you can sue data controllers if you consider your rights to have been violated. Where you have suffered damages due to GDPR infringements, you also have a right to compensation per Art 82. However, your rights may not have been violate as far as the GDPR is concerned. Under the GDPR any kind of personal data processing needs a clear purpose, and that purpose needs a legal basis. One possible legal basis is consent, but there also are others (such as legitimate interest). Just because you didn't consent doesn't mean that your rights have been violated. Where processing is based on legitimate interest, you can object to that processing of your personal data – but your rights must be balanced against that legitimate interest (Art 21). If your friends post a photo and you only appear in the background, your friends' legitimate interest to post that photo likely outweighs your rights. In practice, suing Facebook because of GDPR infringement is not a sensible way to achieve the outcomes that you likely want. First, this is expensive. Second, it is arguable whether Facebook or your friends should be the defendant. Third, removal of existing data won't prevent the processing of new data in the future. It would be more sensible to treat this as an interpersonal rather than a legal problem, and to talk with your friends so that they don't include you in their photos that they would like to share online. I've focussed on photos because their situation is fairly clear. Voice snippets might not count as personal data when you are not identifiable in them. Personal assistant apps should not be listening continuously, but only start recording when a wake-word is recognized. | 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. | If I have correctly untangled the law, Schedule 2 of the Data Protection Act part 3 identifies as a condition where you are not prohibited from revealing personal data: The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. The Animal Welfare Act 25(1) says An inspector may require the holder of a licence to produce for inspection any records which he is required to keep by a condition of the licence I can't tell if you are required to keep customer names, but if you are, it looks like the pieces fit together and you would have to provide the records. Call a solicitor to be sure, though. | If a data controller fails to fulfil your data subject rights, lodge a complaint with your data protection authority. In Hamburg, the appropriate form is here. However, they are not required to investigate your complaint. Independently from a complaint, you could consider suing Wordpress for compliance – Automattic has a subsidiary in Ireland so this might actually be feasible. I'm not quite sure though that Automattic is indeed the data controller for wordpress.org, as opposed to the .com domain – the privacy policy isn't quite GDPR compliant. While your GDPR Art 17 Right to Erasure might not apply in this case, there's a definite GDPR violation because the data controller failed to respond to your request within a month as per Art 12(4). That your posts on the bugtracker were deleted doesn't look like an issue in this context, what does matter is that they didn't respond to emails to the addresses mentioned in their privacy policy. Whether you have a right to erasure depends on the legal basis for storing your data. In general, you have a right to erasure if: the data is no longer necessary; processing is based on consent (because you can always withdraw consent); or processing is based on a legitimate interest and they have no overriding legitimate grounds to continue processing despite your objection (Art 21). The data is still necessary to identify you for your actions on the bugtracker, but depending on your particular situation you may be able to object successfully and force them to anonymize your posts. | No GDPR applies to people (not just citizens) who are in the EU. It has no applicability if both parties are not in the EU. |
Are pleading guilty and pleading no contest to a criminal charge the same? I sometimes hear these terms used in TV crime dramas and was wondering what exactly they meant. Is a no contest plea to a criminal charge the same thing as a guilty plea or is it different in some way? If they do indeed mean the same thing, why are the two terms used? | A "No Contest" plea (also known in Latin as "Nolo Contendere" and sometimes called an "Alford" plea) has the same legal effect in criminal court as a guilty plea. The result is that the defendant is giving up their right to a trial and allowing the court to convict. The difference (as mentioned in the link above) is that in a no contest plea, the defendant is not required to formally allocute, or publicly admit guilt. This means that the defendant's admission is not available in a subsequent civil lawsuit for damages brought by the victim. The plea is also sometimes used when the defendant is not in danger of a civil lawsuit but wishes for personal reasons to refrain from publicly admitting their guilt while accepting a conviction and sentence. This plea is sometimes called an "Alford" plea because it was affirmed in the case North Carolina v. Alford, 400 U.S. 25 (1970). | 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. | It is the job of the judge to instruct the jury about the law. If Texas had pattern instructions I'd look up what the instruction is for this matter, but you don't, so I don't know what the judge would say. But it is the judge's sole prerogative to instruct the jury in the law. If the question is a "commitment question", then it is an improper question and should be disallowed, see Stendefer v. State. The question "Would you presume someone guilty if he or she refused a breath test on their refusal alone?" is such a commitment question, and is disallowed. Similarly, "If the evidence, in a hypothetical case, showed that a person was arrested and they had a crack pipe in their pocket, and they had a residue amount in it, and it could be measured, and it could be seen, is there anyone who could not convict a person, based on that" (Atkins v. State, 951 S.W.2d 787). An improper commitment question could be of the type "could you refrain...": Let us assume that you are considering in the penalty phase of any capital murder case, okay? And some of the evidence that has come in shows that the victim's family was greatly impacted and terribly grieved and greatly harmed by the facts․Can you assure us that the knowledge of those facts would not prevent you or substantially impair you in considering a life sentence in such a case (Penry v. State, 903 S.W.2d 715). One way in which a commitment question can be legal is if it asks basically "can you uphold the law?", for example "can you consider probation in a murder case?", or "are you willing to consider mitigating circumstances". The wrong answer to those questions will lead to a for-cause dismissal. The third question is flagrantly improper, the first is rather improper, and the second probably is. If the question can be framed in terms of a candidate's willingness to follow the law, then it should be legal. | 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. | 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. | Theft is universally a crime in virtually every jurisdiction. Insofar as a state has a criminal code and a functioning judiciary, theft will always be a crime. It is also a basic legal principle that theft is a tort as well (in other words, a civil wrong incurring damages to an individual that can be remedied in a court of law). A key part of the problem in failing to make theft a crime, is that in the absence of a substantive penalty in terms of a fine or imprisonment, theft becomes a low-risk, high-reward activity where the maximum penalty is simply the repayment of stolen goods (with relatively minimal loss). This fails to provide an effective deterrent to this socially frowned-upon activity, and rates of crime would skyrocket. It is appropriate, therefore, to make theft a crime (and all jurisdictions do so), as all pillars of criminal justice immediately apply. Edit: As @/JBentley correctly points out, penalties do in fact exist in civil law. That said, the power of incarceration, perhaps in this case the ultimate deterrent, is largely unavailable in civil cases. The ultimate point - that theft is rendered a more sound and legitimate enterprise based largely on gambling - remains the same. Additionally, not all individuals have the time or effort to file small claims and follow cases to the end. Making theft a tort-only offense would cause extraordinary difficulties in enforcement as many would consider the loss of perhaps a small article relatively insignificant compared to filing in small claims court. | That sounds a lot like the German Antragsdelikt (literally "crime by request"). That is a crime (defined in the criminal code), that can only be prosecuted if the victim requests it. Antragsdelikt mostly applies to less serious crimes, such as slander or petty theft, while "serious" crimes, such as robbery or assault must always be prosecuted (Offizialdelikt). Also, there are many minor crimes (relatives Antragsdelikt) which are usually only prosecuted by request, but where the prosecution can also decide to press charges if it is in the "public interest" (usually because the act is deemed a serious infraction). Similar concepts exist in Austria and Switzerland. | It is not entrapment because entrapment must be done by officers of the State (police usually). A member of the public inducing another to commit a crime is not entrapment and not a defense to having committed it. Entrapment is a "thing" in Ireland as it is in all common law jurisdictions, however, the specific limits on what police can and cannot do vary by jurisdiction. Police posing as underage children to catch pedophiles is legal throughout Australia (i.e., not entrapment). Police are more restricted in Canada and the USA but I believe that online "trawling" by police is legal in those jurisdictions too, however, they must remain more "passive" than Australian police. Yes, there is a crime being committed, the crime of attempting to engage in underage sex. It doesn't matter that the actual crime attempted is impossible to commit because the "victim" is not actually underage. Evidence is evidence – it doesn't matter who collects it. However, amateurs in the handling of evidence are more likely to botch it up in a way that would allow the defense to have it ruled inadmissible than professionals (although even they can botch it up). |
Is any of the free law programs in Germany arranged or attendable online? This question arose out of the answer given by Volker Siegel to this question. Is it possible to establish admission online to without personal attendance or attend online after regular admission? What, if any, program is closest to a fully online law program out of the free ones for EU and non-EU citizens? This question is interesting because, for example in many states of the U.S., one who holds an LL or M. degree is permitted to attempt to absolve the admission prerequisite (for the U.S. typically the bar exam), and, if successful, may practice as a lawyer. | You can search for study programs via Hochschulkompass. There’s essentially just the Bachelor of Laws attainable at the Fernuniversität in Hagen. You can also do the First Legal Examination there, but if you really wanna become a Volljurist, i.e. a judge or an attorney, you will inevitably have to come to Germany, because the Referendariat can only be done here. Note, AFAIK it is not necessary to be an EU citizen to study, but you have to be a German to do any of the typical legal professions here, e.g. being appointed as a judge → § 9 no. 1 DRiG. Naturalization is an entirely different issue, but I’ll rather mention that right away. | Education in India falls under the concurrent list -- i.e. both state and union laws apply. However, there do not appear to be any codified "student rights". The relevant national body for "technical education" is the AICTE, which does have a mechanism for grievance redressal, this is often used as the primary source of complaints against ragging. You can submit a grievance here. The 2004 Guidelines for Grievance Processes require a sub-30-day resolution of complaints. In fact, all accredited technical institutions in India are required to have a local Grievance Redressal Cell and Ombudsman as per this 2012 notification. Finally, you could contact AICTE directly Students may also file grievances at the UGC (University Grants Commission). The UGC is a statutory body in charge of "coordination, determination and maintenance of standards of higher education". In 1987, they released "Guidelines for Student Entitlement". See sections 2.5, 2.6 regarding fairness in evaluation and section 5 which deals with discriminatory treatment. At a state-level, you could try Rajasthan Sampark, which only applies to government institutions. As others have stated, you need to ensure that you have documented and clear proof to support your accusation, and that you should not back down in fear of reprisal. The process of collecting evidence may help you determine if you truly have a valid complaint, or are perceiving bias that does not exist. To the best of my knowledge, in answer to your second question, no, Indian jurisprudence does not have a similar concept of student rights as the United States and some of Europe. While reading the links for the other answers and searching for policies for this post, the one thing that becomes clear is a worrying lack of depth in policies and transparently available policies and data. If you choose to take this forward, I hope that you will document and publish your efforts. | The answer is a clear maybe. The school has a set of rules and by not attending you have broken those rules. The rules may (probably do) allow for consideration of extenuating circumstances but, in general, it doesn't have to. There is probably an appeals process, you need to investigate this. That said, if there are no provisions for extenuating circumstances and/or no appeals process then this may make the contract "unconscionable"; in many jurisdictions this makes the contract void. That doesn't mean you get the marks; it means you get your money back. The circumstances of your court appearance matter: the school may grant special consideration if you are called as a juror or witness; they might not if you are a defendant. Ultimately you had a choice, to follow the rules of the court or the school; there are consequences either way. | What kind of contract would that be? One about... arbitration? One about "I hereby relinquish my claim for payment of X?" --- children cannot be taken away from their father, no matter what. - OP That contract is void in germany because this contract not only violates public policy, it tries to modify something that is regulated by law into a way that does offer less than the law demands as a minimum. That's not allowed in Germany. Further, a clause that gives custody to the father by default is also Sittenwidrig in Germany, and thus void under §138 BGB. So would be a clause that gives it to the mother by default by the way. In a case of controversy, only a court order can assign guardianship. And only the court can take guardianship away. When the kid is born its guardianship gets assigned to the parents as guardians by §1626 BGB. While it is possible to give your partner guardianship if you're not married under 1626a BGB it is explicitly impossible to assign guardianship for any compensation to either party (e.g. the mother or the new guardian may not receive anything other than the guardianship in the specific paper) under 1626b BGB. Thus a contract that does anything else in addition to guardianship, like a prenup, voids at least the guardianship clauses. And you have to tell the court about that assignment of guardianship under ($1626d BGB). Now comes the kicker: §1628 BGB forces the parents to apply to the court to solve any problems of huge impact, such as guardianship: So technically, mediation results are fully non-binding and you can not mandate it. Also, since all marriages are through the state, it needs a formal instrument of the state to be dissolved. The only three ways that the state ever allowed this to be done after WW2 were a) annulment through a court, which only was possible till 1998, or b) divorce through a court, c) death of one of the marriage partners. Yes, it takes a judge to divorce a marriage under $1313 BGB or one of the two married to die. Because you can't divorce without a filing in court, a clause that demands to divorce in some way that is not including §1313 BGB, that clause would be void. It might be legal to have a clause that demands to try to solve issues in arbitration before filing for divorce or sorting the belongings in such a way, but it can't supplant the court requirement. | In Germany, there is no concept that corresponds directly to public domain. You automatically hold the Urheberrecht (~ copyright) for all creative works that you make, and it can't be given up or transferred (§29 UrhG). The work only enters the Gemeinfreiheit (~public domain) 70 years after your death. You can however license Verwertungsrechte (economic usage rights). When you make creative works in the course of employment (see §43 UrhG), your employer automatically gets the Verwertungsrechte necessary in the context for the work, which is typically an exclusive right (no one else, not even you, can use the work). Your are not in an employment relationship with your school, so it has no rights to your works and cannot prevent you from publishing them on copyright grounds. When you see advice on the internet to check with your school first, that is U.S.-specific advice. Since you're still a minor (7–17), you only have limited capacity to enter contracts or legal transactions (bedingte Geschäftsfähigkeit). While you are able to make transactions involving your own means (e.g. buying something with your pocket money) or make transactions that are only to your benefit (such as accepting a gift), other transactions are schwebend unwirksam (~ pending ratification), until your parents agree. The relevant law is in §107 and §108 BGB. This is a problem with open source licenses. If you publish software under a license, this license is schwebend unwirksam. Someone might start using the software under the license. But then if your parents refuse ratification, the license would be invalid, and everyone would have to stop using your software and destroy any derivative works they made. This is a bit of a problem, especially since open source licenses are otherwise assumed to be irrevocable. So if you want to offer a license (including open source licenses), please give legal certainty to the recipients of the license and ask your parents for their consent first, possibly even in writing. Per §107 BGB, the license you offer with their consent will be valid. | You didn't bother to state who this appeal is with or even where you are but I'm almost certain I know the answer. Just once. If the appeal is denied, you may be able to appeal to a higher body such as a higher court or an ombudsman. However, any group or court allowing the same appeal ad infinitum until you get what you want would be farcical. | To add to Nij's answer: You write I have not signed any paper document. You seem to assume that a binding contract can only be entered into in writing. This is wrong. In most countries (certainly in Germany), a binding contract generally does not require a written document. A contract can be entered into orally, or even silently ("Schlüssiges Handeln", "Implied-in-fact contract"). All that is required for a contract is that one party made a proposal, and the other party indicated their agreement, implicitly or explicitly ("Willenserklärung"). Clicking "yes" on a website can mean entering into a contract if you could reasonably be expected to understand that you were accepting certain obligations (such as that of paying a fee). So in your case, you probably entered into a valid contract, and will have to fulfill your obligation under it, which means paying. From a practical point of view: If you choose not to pay, the organizers will probably either drop the claim (if you are lucky), or they will pursue it. In that case, they can send you a "Mahnbescheid" for their claim. At that point you either pay within 14 days, or respond that you reject the claim, then there will be a trial, which you will probably lose, and pay a lot more than 40€. If you do not respond to the Mahnbescheid, you will receive a "Vollstreckungsbescheid", and then a visit by a Gerichtsvollzieher (officer of the court). My advice would be to pay and learn to properly cancel registrations. | Private prosecution is allowed in New Zealand, so one possibility would be to conduct the prosecution yourself. You could either do that as a case of destruction of property, or under the Animal Welfare Act. It is not guaranteed that your charging document will be accepted (for example, if your document lacks the required content). An alternative would be to apply political pressure to the Crown Law Office, to persuade them to pursue the matter. |
Does an artist have a claim to the money generated from your IP? Does an artist have a claim to the money generated from your IP? Let's say that the design was written in paper and then the concept artist represented the written design graphically, does he own any portion of the IP? How can you make sure you don't face this problem if you hire an artist for your work? | 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. | Short Answer No, you may not do this legally without permission in the form of a license from the owners of this intellectual property. Your video game based merch business plan is a horrible, horrible idea. There is no reasonable way that you could have known just how horribly awful and bad an idea this was without talking to someone familiar with the law. So, I'm not saying that this was a stupid or unreasonable question. But, now, you know. And, you should run away from this idea as fast as you can. Long Answer What you are proposing to do is blatant infringement of copyright (and trademarks) through the creation of derviative works, on a systematic basis, for profit, without permission, in a manner that does not constitute a parody or satire or any form of fair use. This kind of economic activity is precisely what copyright and trademark laws are designed to prevent. The case against you for liability could only get more clear if you were selling pirated copies of the game itself. You would have no legal defenses (other than statute of limitations if they waited to many years to sue you, which they almost certainly would not). You would be liable for statutory damages of up to many thousands of dollars per infringing item and the attorneys' fees the intellectual property owners incurred to sue you. The owners of the games could probably get a court order to destroy all of your merchandise, and a restraining order and injunction to force you to immediately shut down your business at any time. They could obtain all of those remedies without sending you a cease and desist letter before suing you. The moderately likely worst case scenario economic liability that you would face would be on the order of 100 times the amount of profits you could hope to make in a best case scenario, and the likelihood that you would incur some significant civil liability is on the order of 85%-90% (with almost of of the little or no civil liability percentage attributed to scenarios in which the company doesn't notice that you are infringing upon its intellectual property rights). Also, the more profitable you are and the higher the volume of goods you sell, the more likely you are to be sued. The liability risk to profit ratio grows with each additional dollar of profit you make. There is a good chance (perhaps 65%-75%) that they could establish that your violation was willful and wanton in these circumstances, which would also prevent you from discharging any part of the massive judgment against you in bankruptcy. So, there is a better than 50% chance that you'd be stuck with an intellectual property rights infringement debt, which could easily run into the high hundreds of thousand or even many millions of dollars, plus post-judgment interest at a rate similar to the market rate for high risk junk bonds, for the rest of your life. In terms of the economic harm involved to you, this would be almost as bad as having all of your property seized and then being sold into slavery for the rest of your life, if a coin toss bet comes up tails, but you get to keep the coin if it comes up heads. A settlement in which you turned over every penny you ever made in the venture, destroyed all of your products, shut down the business and paid them an additional low five figure amount in lieu of penalties and attorneys' fees would be a very generous offer. You would also face a real risk (perhaps 10%-15%) of some low level felony criminal liability (perhaps several years in prison). This is a business plan that is so toxic with immense, near certain liability risks of the worst possible kind that you should put on gloves before picking it up and tossing it into your nearest available fireplace or campfire. This business plan poses more liability risk to you than opening up a nightclub, bribing your contractors and code inspectors to ignore all fire and electrical codes, painting the walls with turpentine, padlocking all of the exit doors from the outside, changing a $1 cover and selling booze at cost to get huge crowds, and then booking bands with lots of fireworks in their stage shows on a nightly basis. (Yes, I really had a client who was stupid enough to come up with this business plan until I talked him out of it.) From a civil liability perspective, you would have less exposure to economic liability if you started a business that involved abducting random cats and dogs and goats off the street and charging customers to forcibly rape and then mutilate them, while filming it for distribution on the Internet with your real name and fingerprints in a watermark on every image and close ups of the animals collar tags and the goats' brands. The likelihood of criminal liability would be quite a bit greater (perhaps 60%-80%), however, even though the punishment if you were convicted of felonies for the bestiality business would be similar to the punishment for a conviction for copyright and trademark infringement. (Thankfully, I have yet to see a client try to implement this business plan.) Go hire someone to secure a license from the intellectual property owner for you (perhaps an IP lawyer or an agent or broker), or forget about it. This is an industry where you absolutely must be legitimate, and you have to go big or go home. The economies of scale are simply too immense to ignore. If your anticipated gross sales aren't at least $500,000 a year or so, you probably shouldn't even consider doing it whether it is legal or not. A license, if you could get it, would probably cost $6,000 to $12,000 in professional fees to negotiate (if you could accomplish this feat at all), perhaps a similar amount for an upfront fee to the intellectual property holder, and probably 10%-35% of your profits on an ongoing basis. This is because the market rate of licenses of this kind are geared towards what large scale distributors selling wholesale to Wal-Marts, department stores, and national mall chains could bear (I have some clients that happily pay these kinds of license fees so they can sell branded products, manufactured in China and then imported, on a high volume national basis.) The license fees would be a huge bargain by comparison to your economic exposure to infringement liability. But, if even the licensing fees (if you could negotiate a deal to pay them) are too expensive, then, this business plan doesn't make economic sense even with permission in the form of a license from the intellectual property owner. In that case, you should instead go into the lemonade stand business or buy a food truck, or become an Uber driver, or open a coffee shop or a liquor store, or something like that, with less liability risk and a more proven business model. If you must make video game merch without permission, do it in a back alley of a small town in rural Mexico on a cash only basis (where lots of people do stuff like this without getting caught), rather than an online store, where any bored paralegal or network manager in the video game company's law firm can find you at a moment's notice and might win a promotion or a raise or a bonus for doing so. | It's questionable, because if you design your own visual interpretation of the T-Shirt then it isn't necessarily the one from the book and thus your art has it's own copyright. However, if the current Copyright Holder and Possible Trademark owner is selling the shirt it could be an issue because yours is not official but being sold as one. If you're making it for non-sale and just cosplay, than you have a better arguement. | This would be infringement. It generally doesn't matter that you're giving things away for free. Keep in mind that the point of these laws is not only to prevent third parties from making money off the creator's ideas, but also to protect the creator's ability to make money. If you're providing free knock-off Winnie the Pooh products, that cuts into the market for the creator's legitimate products. | This depends on the agreement between the person commissioning the work and the ghostwriter; but it is entirely possible that the ghostwriter would have no claim of copyright if it is a "work for hire". This circular (PDF) from the US Copyright Office lays out the possibilities. Under the US Copyright Act, a work may be considered a "work for hire" if it is: a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. If (in the second case) the commissioner and the ghostwriter sign a written contract saying that the work is a "work for hire" (see p. 3 of the PDF), then the commissioner gets the copyright, not the ghostwriter: If a work is a work made for hire, the employer or the party that specially ordered or commissioned that work is the author of that work. If a work is made for hire, the employer or the party that specially ordered or commissioned that work is the initial owner of the copyright in the work unless the employer or the commissioning party has signed a written agreement to the contrary with the work’s creator. However, it is also possible for ghostwriters to negotiate some rights to their own work in the contract process. This FAQ describes one possibility: Question: How can I bargain for a better ghostwriter agreement? Answer: If you are commissioned to create a work, and you don’t feel comfortable signing a ghostwriter for hire contract (perhaps you want to use the characters you create for another project, etc), then you can negotiate to grant less extensive rights and sign a “freelance writer for hire” agreement instead. Limit the amount of time the Client owns exclusive rights, whereby you can initiate a termination of transfer. If this doesn’t fly, bargain for more money. You may also propose that if the Client decides to abandon the project, then the copyright can revert to you. | The reason is 17 USC 106: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following... (2) to prepare derivative works based upon the copyrighted work The original picture is the underlying protected work. The ASCII reproduction is a derivative work. If you get permission to make the derivative work, it is okay. Otherwise, it is copyright infringement. There is an escape clause, "fair use", which amounts to taking a chance that you won't be sued and then arguing that you didn't do them any prohibited harm. If you make any money off of the game, you have a major strike against you. I suggest reading the fair use FAQ; basically, it is really hard to know how a fair use defense will fare, but based on prior cases, I'd say it's infringement, not fair use. | I would argue that no, there is no copyright for the restored work. Independent copyright is only possible for any original material added, as previously discussed on this site. In this case, the added work was a technical process rather than a creative process, and technical processes cannot be protected by copyright. Copyright licenses would therefore be ineffective. However, I believe one could still impose a license based on owning the copy as opposed to the copyright (contract might be a better term in this case). However, if a third party managed to obtain a copy through some other avenue, any such contract would not be binding on them and nothing could be enforced against them unlike with copyright laws. Another way a license might be imposed is through patent protections, as technical processes can be protected via patents. However, I'm not as familiar with patent law, and this doesn't appear to be the claim being made. | It Depends If the person reusing the image (lets call that person R for reuser) is not complying with the terms of the Creative commons license, which include a requirement to provide attribution of the source work, then R cannot rely on the license, and the granting of the license ad the presence of a license declaration is legally irrelevant. R must have some other basis to reuse the image. This could be an exception to copyright, such as fair use or fair dealing. Or possibly the image is not protected by copyright, for example because its copyright has expired, or because it is a work of the US Federal Government being used in the US. In the absence of such a basis, R is infringing copyright. In much of the world copyright now lasts for 70 years after the death of the author (or of all co-authors). In some different terms apply, ranging from life+50 to life+100. Sound recordings and photos get shorter terms in some countries. In the US the term is life+70 for recent works, but for work created and published before 1978 more complex rules apply, depending on the date of publication, and whether laws on notice and renewal were complied with. See the well-known chart Copyright Term and the Public Domain for the various cases and when copyright expires in each case. The question asks about fair use. This is a US-specific legal concept. It is designed to be flexible, an is highly fact-dependent. As a result it is rarely possible to say if a use will qualify as a fair use with certainty until a court passes on it. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more on fair use. Not providing attribution is itself often considered to weigh against fair use. The question does not give enough detail to make even a good guess as to whether such a use is likely to be held to be fair use. Identifying the kind of eagle has some educational value, which might favor fair use to some extent, but must be considered in light of the overall purpose of the use, which is not described. There is no indication as to whether the original work is creative or factual, or whether the reuse would be likely to harm the market for the original. Much use of images on social media does not stand up under a fair use analysis. Providing proper attribution might well help any fair use claim. See also Do you have to give attribution if an image falls under Creative Commons? |
To what extent has the US government legal claims to the assets of the Federal Reserve? My question concerns the total assets of the Federal Reserve. To what extent does the government have control over, or own these assets? | The U.S. government only owns the assets deposited in its own accounts in Federal Reserve banks and profits from portions of its operations amounting to about $100 billion a year. Federal Reserve member banks are owned by private commercial banks in their region and are partially controlled by these shareholders (who have some say in electing regional Federal Reserve bank boards but not in the manner of a typical privately held company), but certain national economic policy issues delegated to the Federal Reserve's policy making entities are controlled by a Presidentially appointed (and U.S. Senate approved) Board of Directors which is really what people are talking about when they refer to the "Fed". The overall structure is a complex public-private hybrid organization and this brief answer oversimplifies the matter which has many nuances and unique features. Most notably, the Federal Reserve's policy making board sets some key interest rates, sets the reserve requirements for commercial banks (together with and in coordination with the FDIC) and as a matter of practical reality, is the primary entity that regulates the money supply. The Federal Reserve's policy making arm can also authorize loans of U.S. funds to private business in certain circumstances (most prominently in recent times during the Financial Crisis). The Federal Reserve is also the primary administrator of the U.S. payments systems used for checks and similar negotiable instruments, and for wire transfers between financial institutions. | Suppose I obtain the ability to access someone else's cryptocurrency. This sounds like fraud e.g. I overheard them saying the password to their wallet out loud or I am a custodian of their assets. Nope, STILL fraud, possibly even Computer Misuse aka hacking... and because you use internet: it's Wire Fraud I now borrow those assets, keep them for some period of time, and then return them, without the owner's consent. hmmm, let's take california... Luckjy you, it is not embezzlement because you were not entrusted with the cryptocurrency, you gave yourself access. 503. Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted. No it is plainly... theft under California law: 484. (a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern. For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question. The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud. Giving it back doesn't matter. The person taking the crypto for any amount of time without being entitled to them is committing theft. You see, California doesn't interest that you just want to borrow. They don't even require Mens Rea for the mere taking - only for fraudulent pretense there is an intent question. In fact, it might even be automatically Grand Theft: 484d. As used in this section and Sections 484e to 484j, inclusive:[...] (2) “Access card” means any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access card, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by a paper instrument. 484e. (a) Every person who, with intent to defraud, sells, transfers, or conveys, an access card, without the cardholder’s or issuer’s consent, is guilty of grand theft. YIKES! and now, intent to defraud comes in, but that is actually minimal: that just means taking without being allowed to by the owner in many cases. | To pick up on your comment 'Does this mean if I wish to build a chair for personal use, then since trade of chairs exists between states, Congress has the authority to outlaw possession or manufacturing of chairs?': Yes. For example, the US Congress can legislate to prohibit a farmer from growing wheat for use on his own farm, on the basis that there is interstate trade in wheat and therefore the Commerce Clause permits Congress to regulate the growing of wheat: Wickard v Filburn (1942) 317 US 111. If you grow marijuana, or build a chair, or whatever, you conceivably affect the number of marijuanas, chairs, etc that are traded between states. Therefore you affect interstate commerce. Therefore the US Congress can regulate you. The fact that your marijuana or your chair or your what is trivial in the scheme of the national economy is irrelevant if the aggregation of all regulated marijuana, chairs or wheat is significant: 317 US 111, 127-128. If the law didn't prohibit possession of marijuana absolutely but instead prohibited, say, the carrying of marijuana in schools, then the US Congress might have trouble relying on the Commerce Clause: see United States v Lopez (1995) 514 US 549 and replace 'marijuana' with 'handguns' (OK the marijuana/handgun analogy is bad but hopefully this illustrates that there are at least some limits on Congress' power -- it's not just 'any physical object that relates whatsoever to interstate trade therefore unfettered federal legislative power'). | Suppose I live in State A, but am on vacation to State B. While on vacation, suppose someone living in State C, but currently in State D, accesses my bank account to take money out illegally. The bank has a central headquarters in State E, although my branch of the bank is in State F. In which of these states could I file a lawsuit? Any of them? All of them? The thief would be the defendant in a lawsuit brought by you. The fact that you are on vacation in State B is irrelevant. You can always sue someone where they are domiciled, so State C is one forum where you could sue the thief. You can also always sue a natural person (as opposed to an entity) in a State where they are physically served with process, so if a summons from the courts of State D were served upon the thief while the thief was in State D, then State D could handle the case. You could also probably sue in State A on the grounds that intangible property is deemed to be located where the owner is domiciled and the theft of intangible property was a harm directed a State A. But, there is an argument that if the thief has no way you knowing that you lived in State A as opposed to State F where your branch is locate, that the thief's actions were targeted at State F. State E would not be a very plausible state to argue that there is jurisdiction. A federal district court has geographic jurisdiction only over cases that could be heard in the state courts of the state where it is located, so a federal court case would be brought only in the states where a state lawsuit could be brought. A federal court cases would either have to seek at least $75,000 (since there is diversity of citizenship between you and the thief), or would have to state at least one theory arising under federal law (which might or might not apply to this case). The you can choose which state to file in from those that are available. Which of these states could file charges against the person? A state can prosecute if the crime happened there, or if the crime caused a harm there. In this case the answer to both of those questions could be muddy. Basically, State A or F is probably where the crime caused harm, and it isn't clear from the OP facts where the crime was committed by the thief (we only know where the thief is now). These acts would also probably violate some federal crime that could be prosecuted in federal court, mostly likely the federal courts in State A or State F. Which of these states could file charges against the person? Could the federal government file charges as well? Would more than one prosecution violate the double jeopardy clause of the Fifth Amendment? What if these were countries instead of states? The double jeopardy clause applies to prosecutions within a single U.S. state, and in addition to any state prosecutions, a single prosecution can be made at the federal level. Likewise, prosecutions in different countries do not count against each other for purposes of a double jeopardy clause. Many U.S. states have a binding or non-binding policy of not prosecuting crimes that have already been prosecuted by another U.S. state or by the federal government, the U.S. Justice Department likewise has a non-binding policy of not prosecuting cases which have already been prosecuted by a U.S. state or another country. But these policies do not have constitutional dimensions and are not required by the 5th Amendment. if I use a Canadian Wi-Fi network without authorization from within the United States, would US or Canadian law apply? In criminal cases, choice of law and jurisdiction over the case are the same thing, because a state or country can only apply its own criminal laws. In civil cases, choice of law is a question distinct from jurisdiction. A court applies the law with the most significant connection to the disputed legal issue in question (sometimes more than one set of laws in a multi-issue case), even if it is the law of a different state or country, which is a standard that affords a judge considerable discretion. Either U.S. law or Canadian law could be plausible to apply in this case depending on the detailed circumstances and the legal issue that is disputed. | No The right to Due Process is a personal right of anyone who may come before a US court, or interact with an agency of any US government, Federal, State, or local. It is noit a national right, to be granted ort withheld depending on hoew US nationals are treated by a particular country. No one has authority to deny De Process to anyone who is physically within the US, nor to anyone who is interacting with any part of the US government/the Fifth and Fourteenth Amendments require the Fedferal and State governments, respectively, to grant Due process to al, and congress may not alter this by law, nor authorize any poat of the government to deny Due Process to anyone for any reason. Due Process is a somewhat flexible concept, and exactly what process is required may vary in different circumstances, but the basic elements of Due Process are not optional. All this is true no matter ow unjustly the courts or other agencies of a foreign government may treat US nationals. Such treatment may be addressed through diplomatic channels, or through economic or political pressure. | 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. | The U.S. could pass a law directing Apple to create software for fair compensation. Similar statutes have been passed in wartime compelling companies to do all sorts of things and companies don't have all of the rights of individuals. If it can be done (not obvious in the case of existing products in the market place), it might be possible for the government to compel it to do so; if it can't be done, it can't be compelled and not all things are possible retroactively. There would also be a constitutional contracts clause issues with such a law impairing contracts between Apple and its customers when applied to existing phones retroactively. Whether it could require Apple to create a law enforcement back door depends upon whether 4th Amendment privacy rights trump the creation of a means to do so. There is an expectation of privacy in electronic records, but it is not absolute. But, there is no law on the books requiring this from Apple. It does not flow naturally from existing powers of law enforcement under existing statutes. It goes beyond what a subpoena would ordinarily require someone to do, and a subpoena is the main means by which governments compel people to provide information. In my opinion, a court faced with that question would rule that a statute requiring Apple to do this prospectively would be constitutional, but no such statute exists. However, this is currently an open legal question because there is no statute of the kind that have been litigated in a manner that produced a binding precedent. | According to CENDI, yes the US government is able to claim copyright on works internationally. The law in question which makes US government works public domain in the US (17 U.S. Code § 105) only does so within the confines of US copyright. Since copyright protection is on a per-country basis, there's no reason that the US government couldn't assert IP rights under foreign copyright law (though I didn't go looking for an example). While the Berne Convention generally requires countries to provide foreign works the same protection as domestic works, I can think of two general reasons why US government works wouldn't fall under copyright protection in some countries: The country simply doesn't apply copyright protection to any government works (don't know how common this is). The country applies the rule of the shorter term. If they do, they aren't required to provide a longer term of protection than the country of origin does (which is nil in this case). |
Can one disclaim or renounce a British peerage after holding it for a year? According to the Peerage Act 1963, anyone may disclaim a hereditary title of nobility within one year of inheriting it, or within one year of the passage of the Act. Since the latter deadline has long since lapsed, is there currently any way to disclaim or renounce a peerage after having held it for more than a year? For instance, say the Earl of Exampleshire, who has held the title since 1990, becomes a fervent republican and wishes to completely dissociate himself from any noble rank. Short of lobbying for and obtaining new legislation (possibly in the form of a private act), or being attainted for a heinous crime, is there any legal mechanism by which said Earl could rid himself of his title and all its attendant privileges and obligations? If the only realistic options involve the consent of the government or the legislative action of Parliament, and the government/Parliament refuses to cooperate, would the Earl have any recourse to the European Court of Human Rights? That is, is there anything in the European Convention on Human Rights that could plausibly be construed as applying to such a case? | There is currently no means for the Earl to disclaim his title, if it has been longer than the permitted period since he inherited it. He also could not do so if he was the first holder, since the 1963 Act only applies to inheritance, and he cannot disclaim a life peerage. The reasoning from 1963 is that the Act was made for people who wanted to sit in the House of Commons, but could not do so due to an accident of birth - something they had no say in. For a life peerage, or peerage of the first creation, they should have refused the honour at the time it was offered. The situation is now a bit different thanks to the removal of all but 92 hereditary peers from the House of Lords in 1999, and the resignation provisions in the House of Lords Reform Act 2014. If the Earl were one of the 92, then he could not disclaim the peerage until he resigned, or was disqualified under other provisions of the 2014 Act. On resignation, he would become able to vote in general elections, stand as a candidate, and sit in the Commons if elected. (By the way, Church of England bishops who are members of the Lords can also resign, but do so in a different way.) So any hereditary or life peer who feels that they are disenfranchised by virtue of sitting in the Lords also has the means to leave that chamber. That makes it difficult to make a human rights claim on the basis of Article 3 of the First Protocol. The European Court of Human Rights has upheld other kinds of voting restrictions in parallel circumstances, such as Ahmed and others v United Kingdom [1998]. In that case, several local government officials were barred from certain political activities, including standing for election, and brought a claim against the UK concerning violation of Articles 10 (free expression), 11 (free association) and 3 of Protocol 1 (free elections). The Court found that the restrictions were justified, and in particular that the applicants could avoid them by resigning. An opposite case was X v United Kingdom [1978] in which the applicant claimed a violation of Article 6 (right to a fair trial) because he claimed to have the right to sit in the Lords but his petition to the Queen was denied. The Commission found that participating in the legislature is part of public law as opposed to a "civil right" within the scope of Article 6. Also, granting or withholding an honour has traditionally been held to be immune from judicial review - cited for example in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 - although this conclusion may no longer be completely solid since the well-known 2019 Miller case. That would apply for aspects of a peerage which are purely ceremonial in nature. The Earl might want to argue that his free expression is impaired by having a hereditary title at all. But there is nothing stopping him from calling himself by an ordinary name. British law doesn't require him to be called the Earl in any context, and there are plenty of peers who use their normal names while working at normal jobs. He has a defined place in the order of precedence, but I am not convinced that the situation would arise where he insisted on going to a fancy dinner and had a contretemps with the host over the seating arrangement that amounted to a human rights violation. Equally, he has the right to wear an Earl's coronet at a royal coronation, but our newly republican Earl would probably just not go. In the case of the Earl Marshal - a hereditary office which goes along with being the Duke of Norfolk - there are non-trivial duties involved, and an Earl Marshal might justifiably want to stop doing them. The past procedure has been for the Crown to appoint a Deputy Earl Marshal instead, as was done in 2000 when the Duke at the time was unwell. It would seem that a similar manoeuvre would work for any other hereditary offices that were more than nominal. If the Crown refused to do this, then perhaps a claim could arise under Article 14 (discrimination on the grounds of birth), but it would require a particularly intransigent Crown. Hereditary peers may hold property in a variety of entertaining feudally-derived ways, in addition to more familiar modes. The most relevant scenario to imagine is that our Earl owns Exampleshire Castle in "fee tail", meaning that he can't dispose of it even though it is horribly expensive for him to keep paying for repairs to its leaky roof - it must pass to his eldest son, and so forth. Even if the Earl is able to disclaim his peerage, he may still be on the hook for the property, depending on how everything is structured. However, there are generally legal workarounds these days, beyond the scope of this question, unlike when entails were so important to the plots of historical stories featuring the aristocracy. There is a current campaign by daughters of some peers to change the inheritance laws away from male-preference primogeniture, including on human rights grounds. It remains to be seen how that will work out, but a key difference here is that they are losing out by not being able to inherit, while the Earl is able to divest himself of all the disadvantages of the title, by simply not using it. | england-and-wales - present day... Would the contents of the envelope be considered privileged? No Although it is possible to argue that the letter is a communication to the lawyer (albeit by mistake) its purpose is not in relation to seeking or receiving legal advice, so it fails to meet the definition of legal privilege: There are two forms of legal professional privilege: Legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice. Litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated. Would the lawyer be required to divulge it if asked by the police or in a court? Yes, No, Maybe If the lawyer is a suspect/defendant then there is no requirement to answer any questions whatsoever. Similarly, there is no obligation on a witness to answer questions unless a statutory provision has been triggered, such as the lawyer being given a Serious Organised Crime and Police Act 2005 Disclosure Notice. Would he be required to report the matter to the police on his own? Yes Although there is no general requirement to report a crime (of this nature) to the police, the lawyer's profession is in the "regulated sector" which requires Suspicious Activity Reports to be submitted to the authorities: ... in respect of information that comes to them in the course of their business if they know, or suspect or have reasonable grounds for knowing or suspecting, that a person is engaged in, or attempting, money laundering... What difference, if any does it make that the client apparently did not intend to send these contents to the lawyer? None that I can see ETA The status of legal privilege in 1925 seems to have been the same as now, and this Wikipedia article, under the heading History offers this in support: The common law principle of legal professional privilege is of extremely long standing. The earliest recorded instance of the principle in English case-law dates from 1577 in the case of Berd v Lovelace ([1576] EngR 10 (& Ors)) | Questions about being barred from entry into the UK 10 years down the road need to be asked some number of years in the future. Current practice is that the Home Secretary does not bar entry because of an unpaid debt, instead you have to do something egregiously bad or antisocial. Given Brexit, future matters of immigration are not set in stone. One consequence of walking away from a lease is that you are likely to be sued (in UK courts) for breach of contract, and the court may find that you owe the rest of the lease money. If that happens, you need to be concerned with whether the judgment can be enforced against you, even when you are in the US. The general answer is, yes, the landlord can petition the US courts to enforce a UK judgment against you. The specific details depend on the law of your state, but most states have a version of the Uniform Foreign Money Judgments Recognition Act. In addition, the landlord could sue you in US courts (maybe not as convenient for him). There is no requirement that you have to be a US citizen to sue a US person, and a landlord can (would almost certainly) sue you via a US attorney who would represent him. An alternative to fleeing your obligation and saying "Go ahead and sue me!" is to negotiate a termination of the lease. The landlord would have a duty to mitigate his losses, so if the remainder of the lease has a value of $2,000 a month for 8 months, the landlord can't just do nothing -- he has to try to rent the unit out, so perhaps his actual losses would be only $4,000. Suing a person is expensive especially when you you are dealing in trans-national disputes, so he may be willing to accept some figure in exchange for terminating the lease. Your (UK) lawyer will give you good advice on how to proceed, if you opt to not get sued. | Transfer of title must eventually occur, otherwise the property was never willed to another because the willing of the property is perpetually incomplete. One can place conditions on the transfer of title, but those conditions cannot last forever. They can last quite long, but there is a rule against perpetuities, especially created due to clauses constraining the transfer of of title in wills. This rule applies to a person who is transferring title, with a conditional clause that bars the full use of the property. If such a clause is limited, then it does not exist in perpetuity. The rule specifically addressed the will's call to reassign title if the transfer's clauses were violated. The maximum limitation historically was the lifetime of some person alive when the will was executed, plus 21 years, to permit an unborn grandchild to inherit. The reason this rule came about was due to the will of Henry Frederick Howard, the Earl of Arundel and Surrey. It effectively left the dead Earl managing his estates after his death, shifting properties that were bequeathed, based on the possibility of a "more suitable" heir being born after the Earl's death. This will eventually created the most complicated bit of common law that exists to date. In my totally amatuer attempt to summarize it; it is a combination of at least two ideas: a "dead hand" (deceased person) cannot guide the activities of the living forever transfer of property (title) must eventually be fully transferred Exceptions to the rule exist for conditional transfer of title back to the person who originally owned the property, but these exceptions cannot apply when the transfer is to a third party. This clause in Evan's will, "If the state violates this clause, the property is to return to the heirs of the estate of Evan Carroll." would only be enforceable for a limited amount of time. First, the Estate of a dead Evan Carroll is not a lasting entity, eventually his estate would be closed. Finally, the transfer to the "heirs" of Evan Carroll would be a transfer to a third party, subject to the rule. Some states interpret their protections against the rule in different ways; but, nearly all states that have revoked the rule have done so by making a new rule (often with easier to manage time limits). A handful claim to have revoked the rule; but, they use other legal approaches to prevent this problem from occurring. Texas has extended the rule to 300 years while New South Wales, puts the limit at 80 years. Texas's extension seemed to be primarily to permit trust funds to operate legally long after the person establishing it had died. Consider what happens if such a rule doesn't exist. The title of the property could never be fully transferred, because the clause could never be proven to not have been violated. This would dramatically devalue the property, and clog the courts with suits claiming property held by one family for 100 years isn't theirs because of some evidence just uncovered about what happened 60 years ago. It also would massively complicate the selling of the property, because a clean title could never be proven. Note that this rule would have no bearing on a covenants not tied to the property's transfer of title. This rule even made it into a recent Disney case, which is explained far better than I can by the Legal Eagle, Devin James Stone | The UK has parliamentary sovereignty, not separation of powers Unlike, say, the United States, where the legislature, the judiciary, and the executive have co-equal power in their respective spheres, in the UK, the judiciary and the executive are subordinate to Parliament. The courts have no power to nullify an Act of Parliament for being unconstitutional like they do in jurisdictions where a written constitution gives them such a power like the USA, Canada, or Australia. The purpose of the Declaration of Incompatibility is to advise Parliament that the law they have passed contradicts the HRA and they should think about that and decide if that’s what they really wanted to do. That means that the UK Parliament could pass the Arbitrary Bollock Removal Act 2023 (ABRA) tomorrow and it would be valid law. The courts can still provide judicial review of the actions of the executive under ABRA but they cannot declare the law a nullity. That is, the Minister’s actions can be scrutinised to ensure they followed the ABRA and other established principles such as procedural fairness and, if they didn’t, declare the executive actions void. However, if they did follow the law, off come your nuts. | Since you asked about any jurisdiction, and presumably any common law jurisdiction, in which one of the elements of theft is the intention to permanently deprive the owner of the property, here's the UK* answer. Regarding borrowing specifically, the UK statute referring to theft - the Theft Act 1968 - provides for this in 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; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. In other words, a thief may say 'I only wished to borrow it', but that won't necessarily amount to a defence under English law. It depends on how long (s)he borrows it for, and how (s)he treats it while borrowing it. In addition, the case law clarifies what is meant by 'his intention is to treat the thing as his own to dispose of regardless of the other's rights'. This has been held to mean: Selling, Bargaining with. R v Cahill, R v Lloyd Rendering Useless. DPP v J Dealing with in a manner which risks its loss. R v Fernandes, R v Marshall Borrowing in certain circumstances. R v Lloyd Pawning. s6(2) Theft Act 1968 Not enough to just deal with it. R v Mitchell So how do we prove whether someone intended to deprive the owner of the property permanently, or at least permanently enough to amount to an offence under the Act? The answer seems to be that we look at how they deal with it, and what condition they leave the property in. If they do any of the things listed above, with the exception of no. 6, then they have demonstrated an intent to permanently deprive; if they merely use the property, then that isn't enough to show such intent. You asked specifically: I am looking for an answer that explains whether someone who credibly asserts – e.g., by advance sworn affidavit – that they intend to return the item can be convicted of theft, or any other crime, for taking someone else's property for an extended but not infinite period of time. In the case of R v Lloyd, the court held borrowing would become intention to permanently deprive the owner of the property if 'all goodness, virtue and practical value is gone'. So if someone swore they were planning on returning the item, the court could nonetheless convict them of theft if they held on to the item for so long, and treated it as their own to such an extent, that all its value was gone. (In R v Lloyd, the items in question were films, and as they were returned in much the same condition as they'd originally been in, this was held not to be intention to permanently deprive, and therefore not to be theft.) *By 'UK' I mean 'English and Welsh'; the answer may be different in Scotland. | Section 4A of the Limitation Act 1980 sets the limitation period for defamation cases to 1 year. However, under section 32A, the court is, in certain situations, allowed to disapply the limitation period to defamation cases. Essentially a court may lift the period if they think it is just and fair to do so. They will take into consideration factors such as the extent to which enforcing the limitation period would unfairly prejudice the claimant, whether new evidence came to light (and if it ought to have come to light sooner) etc. It all really depends on the merits and circumstances of your case. I would recommend seeing a solicitor on the matter. | "Explanations relating to the Charter of Fundamental Rights" on the website you linked to is very clear that the Charter of Fundamental Rights only means the EU institutions can't discriminate based on age, and that EU law is not allowed to be age discriminatory. It doesn't mean that individual acts of age discrimination are illegal: In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. The practice of youth and senior discounts is older than the charter of fundamental rights. The charter will be interpreted in the light of continuity, it definitely wasn't the intention to outlaw price discrimination. There are specific laws that make price discrimination based on certain principles legal, e.g. UK equality act: Age discrimination - when discrimination is allowed in the provision of goods or services |
Can software vendors add a ToS that would give them monetary privileges over things created by their software? Imagine that a software user typed an original novel into a word processor (e.g Microsoft Word or Google Docs). Imaging that the software vendor added something to the terms of service (ToS) saying that anything created by Microsoft Word or Google Sheets became the property of Microsoft/Google. Could Microsoft/Google then demand to be paid a cut of each novel sold by the author/software user? Would this be enforceable in front of the courts? | Under your proposal, the author cannot effectively use the software at all, much less sell his creative efforts. The EULA clearly states that copyright is automatically transferred to the vendor when a document is created. The author gets started, writes "It was a dark and stormy night" then has a moment of writer's block, saves and closes, takes a walk, then tries again. The author has transferred copyright in the work to vendor, and needs vendor's permission to make revisions. So you have to tweak the EULA to grant automatic permission to author to create derivative works (revisions), and to distribute. A more effective strategy would be to impose a revenue-sharing formula on any commercially-exploited work created using the software, rather than attempt to directly seize the intellectual property. The CC "NC" license attribute is a distant version of what you are looking for - it prohibit any money-making use of the software. What you would add to that is a condition that the software can be used commercially, provided a certain compensation be rendered. You would of course have to be very clear in advance about what was actually agreed to. | 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. | You are making an argument along the lines of promissory estoppel, but this requires reliance on a promise (roughly). From Google's Developer Distribution Agreement: Google reserves the right to suspend and/or bar any Developer from the Store at its sole discretion. From Apple's iOS Developer Program Agreement: You understand and agree that Apple may, in its sole discretion, reject Your Application for distribution for any reason Apple and its licensors reserve the right to change, suspend, remove, or disable access to any services at any time. Neither company makes any representation or promise that a developer will have the right to distribute their product through these official stores. It is irrelevant that an app happens to not violate any terms of the agreement. Even if you demonstrated this, distribution of an app through the official stores is at the sole discretion of Apple and Google. | I suspect contract law will affect the ability to do this. Terms like "USB" and the associated logos etc are intellectual property (trademarks, copyrights, etc) owned by the USB Consortium. If you don't comply with their terms, you probably cannot describe your product as a USB product. THE USB-IF LOGOS MAY BE USED ONLY IN CONJUNCTION WITH PRODUCTS WHICH HAVE PASSED USB-IF COMPLIANCE TESTING AND ARE CURRENTLY ON THE INTEGRATORS LIST. THIS REQUIRES THAT THE COMPANY BE ASSIGNED A USB VENDOR ID NUMBER. | Yes, a work with no license is All Rights Reserved, reserved meaning the creator of the work. Who is the creator of the work ? Everyone who contributed it, unanimously. Yes. If people contributed any copyrightable part of your work, in theory you cannot add any license or grant any right to use/reproduce/whatever the work without their unanimous agreement. That's very cumbersome, and almost nobody really does that, but it's what the law is. Big serious companies and repos require contributors to waive their rights on the code they contribute, by agreeing to a contributor's agreement. For example, python/cpython requires you to give your contribs a license allowing the python org to do essentially what they want with it, even though you retain copyright over them. If your project is not so serious, I suggest it should be enough to make the license clear, and that by contributing people are agreeing to place their contribution's code under the license. If it's a free license, that's all you need. | It is reasonable to interpret the statement in their Github repository README.md as a "public domain" license for anything contained there. However, their "usage guidelines" backpedals a bit ("generally are not copyrighted", the misleading implication that content used commercially is subject to restrictions that educational and personal uses are not subject to). Although it is true that works "created by the US government" are not protected by copyright, not everything associated with a government agency is created by the US government. An agency might have a policy that they will not post material that is not copyright-free, there is no practical means of knowing if an item is an actual government work, versus a government-supported or government-hosted work (where copyright is held by someone else). If you trust their implication that all of those items in the repository are indeed government works, then they are free of copyright. I don't know any reason to not believe them, although sometimes the government is wrong and they end up liable big-time for infringement. However... NASA Open Source Agreement Version 1.3 (another copy on a NASA web page) on first glance seems to contradict the "government work" theory. Here, they claim to grant certain rights to users and also impose impose restrictions (including obligatory registration). This does not make any sense for a work that is in the public domain. The license is legally defective in that it fails to fill in relevant blanks (agency name, title of work, URL for obligatory registration). Also notice that the license is only for software. The scope of that license therefore has to be something narrower – it applies only to software, and presumably software that is not "a government work". I have no idea what software NASA could legally give away and is not a government work which is therefore not protected by copyright. | The web-browser game was copyrighted the moment it was created by the individual. It did not need a copyright notice to be copyrighted, or a TOS to inform you of copyright. The individual was fully within the law to claim infringement and demand you stop disturbing your mod as an unauthorized change to their game. They should have had a TOS up when they started distributing the game, but that's their choice. The developer could - or have their attorney - send their own legal "takedown notice" of infringement directly to you rather than Tweet about it or approach Google. Google's takedown and your "copyright strike" is different than your original copyright violation and involves Google's TOS - Google Chrome Web Store Developer Agreement | Google Chrome - regarding copyright violations of apps and code under distribution. By your use of the store, Google reserves the right to remove your extensions when there are ...violations of intellectual property rights, including patent, copyright, trademark, trade secret, or other proprietary right of any party,... And, the original game being free and your mod being free rarely matters in copyright law and in cases of infringement. That's something a court would decide on the case and in looking at precedent(s). ...can I get into legal trouble for this? You could be sued by the maker of the game in civil court; that's up to them. Google's recourse is to simply remove the mod from the store and possibly restrict your use of their service(s), according to their TOS. For more background, see the Law SE Meta post I have a question about copyright. What should I read before I ask it? . | To the extent that Admin is running a business rather than a free relay server, Admin will have various legal concerns. As I understand the system as you describe it, a user uploads some content to a machine, operated by AMastodonAdmin, which then makes that content available to others. W.r.t. US law, the admin needs to be concerned with a number of things. Copyright violation is one: he may get sued for contributory infringement. The DMCA safe harbor provision reduce the risk, if complied with. Defamation is another potential issue (a publisher is liable for damages under defamation law, as well as the author). "Section 230" may provide protection, but there is a large body of case law mentioned in there that would heave to be taken into consideration – and two upcoming Supreme Court cases. (Basically, Section 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"). The administrator has a property right to include / exclude anyone they want to, on their machine, except that a contract between Admin and User might limit his right. A TOS is a contract, which typically says "You can use my machine in a specific way as long as you follow these rules". Requiring payment in exchange for access limits Admin's right to do whatever they want. For free-access systems, there is typically a clause saying "we can kick you off if we want", though also implying that they will only kick you off for a specific action ("violating community standards"). In order to legally receive content from User, you need permission from User to redistribute their intellectual property (therefore a TOS is virtually mandatory). This would include a warranty from User that they have the right to upload whatever they do upload, granting a correct license to Admin (read the Stack Exchange TOS), and while you are at it, you should say explicitly that if a user misbehaves, they can be banned. Silence is legally problematic, compared to explicit permission or prohibition, because then there may be a long legal wrangle over whether lack of prohibition is implicit permission. Admin technically should care about GDPR, though enforcement may make this a non-issue. A US company operating as Admin would have a real concern with GDPR, but a guy running a free basement server, having no ties to the EU, might ignore GDPR, the same way they might ignore some other nation's law against apostacy. |
Can a software company forbid individuals to consult on how to use their software? I read on https://easychair.org/licenses: Please note that we do not allow any organizations or individuals whose professional duties include conference organisation or who are paid, in any form, for doing so to resell our services or consult on how to use EasyChair without our express permission. Can a software company forbid individuals to consult on how to use their software in the United States? I would have guessed this is outside their legal reach but could be wrong. | They certainly can make that a license term and revoke the license if you do not comply. However, revoking the license is all they can do to "forbid". Or they could sue you for damages without revoking the license. That said, you are free to consult how to use their software so long as you do not hold a license so that you are not bound by the terms AND you do not break the law e.g. copyright. How to do it is up to you to figure. Maybe you could simply consult users that do have a license — on their premises and devices. | 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? | 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. | No You are limited to “your ... use only”. You are not given permission to make this available for 3rd parties either commercially or for free. | Can the name of my LLC include the phrases "Software Engineer", "Software Engineering", or similar derivations thereof? No. Not based on what you've posted. Go to the definitions to see how engineer is defined. It may be they are talking about actual structural engineers or environmental engineers, where if you're wrong people die. But based on above, you can't use the word engineer unless you're licensed as such. Is there even a license for computer engineer? This seems more like it could be a term of use but not actually descriptive of what you're doing. IDK. You'd have to see the definitions and exceptions. Can my resume, curriculum vitae, or my advertising or promotional materials accurately report the subjects I studied in college as the subject matter of "Software Engineering", to the extent that this information is true and accurate? Yes, your CV is supposed to say what you have done, and learned and especially published (lest it's just a resume), but the answer as far as promotional materials, is NO. This, because you don't post your cv on your ad's and if you put that, you will likely be found to be trying to pose as a licensed professional based on a technicality. If that happens the licensing authority will probably censure you by disallowing a license when your qualify. If asked directly by a client, am I even allowed to divulge my area of study accurately,(of course, but you'd also have to divulge the fact that you are not licensed and cannot act in that capacity) Would it be a violation of the law to claim I had engineering knowledge since I have studied (and practiced) software engineering in the past (for instance, at previous places of work in states which did not have these kinds of limitations, or for corporations which did not offer my services to the general public)? It could be if the person reports that you are soliciting work as an engineer w/out a license. It's like a person who went to law school, passed the bar, but never got sworn in. They cannot solicit business as a lawyer. Unless there is a license for being a computer programer, there is nothing barring you from using that terminology. You could be, that if you look up the definition prior to the statue, that it says something like "for the purposes of this section the term engineer means…", In which case it doesn't even apply to you. | The question reads: I see an NDA as a pseudo-public document, something you need to read in detail before you acknowledge and opt-in to limit rights (discussion of topic/tech). Unfortunately for this view, the law normally sees an NDA as a private contract, except when it is alleged that it violates public policy. If an NDA explicitly or implicitly includes itself in the list of things not to be disclosed, then posting it would be a violation of the contract. In such a case the party posting the agreement would be subject to whatever consequence the agreement specifies for violation, unless that person had a valid defense. The operator of a web site where the document might be posted would not normally ne a party to the agreement, and so would not be liable for hosting it, unless some other limitation applies, beyond the NDA itself. An NDA can indeed be a significant limitation on the signer's freedom to discuss certain topics, and a person would be wise to consider it in detail, and perhaps consult a lawyer, before signing one. But that does not mean that the person should post or distribute it publicly, nor that the person is automatically entitled to consult NDAs that others have signed. There are sufficient sample NDA forms available that a person can compare an offered NDA with other possibilities, and get an idea if an offered NDA goes beyond the usual terms. | It's really your client that should be asking these questions. Writing the app is perfectly legal. So you can enter a contract with that client to write the app and deliver it to them, ready to be put on the Google Play store or the App Store (entering a contract needs to be done carefully, obviously). I'd make 100 million percent sure that the contract states clearly that you have zero responsibility if the app is rejected or removed for non-technical reasons, and that the legality of actually selling and running the app is also not your responsibility. The reason is that I very much suspect that running the app might be illegal, and that the chances of getting it permanently on one of the stores are rather slim. And solving those problems is outside of what a software developer can competently do. | Only if you ask Valve for permission first, and they agree in writing. I'm not a lawyer, but when I was reading through the Subscriber license you linked, this stuck out to me: You are entitled to use the Content and Services for your own personal use, but you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Content and Services to other parties in any way, nor to rent, lease or license the Content and Services to others without the prior written consent of Valve, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); (ii) host or provide matchmaking services for the Content and Services or emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services, use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks, websites or services, without the prior written consent of Valve; or (iii) exploit the Content and Services or any of its parts for any commercial purpose, except as expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use). The part that I've bolded is probably the part that makes this against the Terms of Service, since in order to post these sorts of automated messages to their service, you'd need to use a "utility program" to "emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services". I doubt that Valve would ever agree, since such a program could very easily be used to create spam bots that works bombard users with unsolicited advertisements, but maybe Valve would be willing to cut deals with AAA video game companies to let them deploy tools to automatically manage their store pages. |
How much can you pay yourself after receiving money from a Kickstarter fund? How much can you pay yourself after receiving money from a Kickstarter fund? I am thinking you need to pay yourself for the labor, but I am not sure if there's a way to determine the appropriate money you can spend. Also, since some of the money is going to be used to pay taxes, do you have to deduct the sum you have to pay in taxes when calculating the % of the money you can use for your own labor? | Summarized from Kickstarter's Q & A: You are executing a project where you are paid by people to deliver a defined outcome at a defined deadline. And the terms of Kickstarter make it clear that it is your legal obligation to deliver as promised (see Your responsibility). In order to deliver you need to pay for your bill of material, your processing cost, your working time (this is your salary), shipping, a Kickstart fee, maybe office space and so on. Considering all this cost, you define the minimum amount of money you need and set this as your target (see in more detail What should I consider when setting my funding goal?). The salary is dependent on you how much money you want to pay yourself (so you more or less define it). I guess one would pay oneself a typical salary as also paid in a comparable industry. In case you collect a lot more than you expected, you might reinvest, improve your product or you can also make a profit (see in more detail What happens when a project is overfunded?). This means you could pay yourself an accordingly higher salary. After you paid yourself a salary, you have to pay tax on the salary. The details are dependent on the country where you live, but this is generally how it works. | I wouldn't be surprised to see other states and jurisdictions with similar statutes. Fortunately, in the United States, there is a safe harbor against demands for state income taxes: For every dollar of taxable income, you can only be taxed by one state. (This was affirmed by the Supreme Court in 2015 in Comptroller of the Treasury of Maryland v. Wynne.) Therefore, if you show that the LLC (or its members if it's a pass-through) paid taxes to another state on the income in question (e.g., by sending a copy of the tax return), that's legally the end of the matter. | No employer has ever the right to withhold your pay check for work you have done. It is strictly illegal. Even if they had 100% evidence that you caused damage and were responsible for that damage, they still can't withhold your pay. They have to pay you, and then they can try to take you to court. The reason for this law is exactly cases like yours, where people try to avoid payment. If the "powerful attorney" tells you that you are not getting paid, then that "powerful attorney" is making a big mistake, because any lawyer would love to take your case to court and see the judge cutting the "powerful attorney" down to size. If you don't want a lawyer now, then you can write a letter by registered mail telling them that you worked for them, how much the payment due is, that they are legally required to make that payment, and that you will take them to court if they are not paying. If there is a conflict between law and a "powerful attorney", the law wins, and the law is 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. | You ask permission, preferably with legal counsel to handle the details. It really is that simple. Unsurprisingly, most companies don't want to give their code away- especially to a competitor. If you even get a response, they will expect something in return i.e. money. Realistically though, it's unlikely they will respond, much less deal with you. | Your legal obligation to pay income taxes is generally dependent upon where you perform the work, not where the funds you earn from doing the work are delivered. If you do work in Turkey that causes you to receive earned income, you owe Turkish income taxes on those earning, and your employer has a legal obligation to the Turkish government to make sure that those taxes get collected, or your employer will have to pay your taxes (with penalties) for you. If your employer has to do that, your employer will dock your pay to cover your obligations regardless of which bank account you use or whether you set up a corporation that does work in Turkey as a subcontracting company rather than in an employee-employer relationship. Any of the actions you propose to evade Turkish income taxes would constitute criminal tax fraud and could lead to you and the payroll officials at your employer's company who were complicit in allowing you to attempt to evade Turkish taxes spending time in a Turkish prison. Then you'd be deported. And, of course, you'd be fired probably as soon as you were criminally charged. The U.S. would cooperate with Turkey in pursuing you, your employer and your employer's payroll officials, although I don't know how the Kuwaiti government would respond. | Yes, you can fork it - but you can’t use it GitHub explain what’s a public deposit with no licence means here. If you find software that doesn’t have a license, that generally means you have no permission from the creators of the software to use, modify, or share the software. Although a code host such as GitHub may allow you to view and fork the code, this does not imply that you are permitted to use, modify, or share the software for any purpose. Your options: Ask the maintainers nicely to add a license. Unless the software includes strong indications to the contrary, lack of a license is probably an oversight. If the software is hosted on a site like GitHub, open an issue requesting a license and include a link to this site. If you’re bold and it’s fairly obvious what license is most appropriate, open a pull request to add a license – see “suggest this license” in the sidebar of the page for each license on this site (e.g., MIT). Don’t use the software. Find or create an alternative that is under an open source license. Negotiate a private license. Bring your lawyer. | You should have seen this coming. This might vary a bit from place to place, however it would generally be accepted that if you are in a rented place, you have to pay rent. Most jurisdictions would have some law which requires pro-rata'd payment for the time you actually stay, there would not be any requiring the landlord let you stay free. An uninvested third party might ask "Why would a landlord provide you with 5 days free rent". Another way to look at it is that one of the elements of a contract is consideration (think payment) - Thus in contracting to stay in his place longer you should expect to provide consideration - and pro-rata'd rent would be typical. |
What would happen to the churches (physical buildings), works of art, etc. in case of a new schism? In the recent past, in the opinion of some theologians, the German catholic church is close to a schism with the Catholic Church. Regardless of whether you agree or not, I'm interested in knowing what would happen to the physical assets (churches, works of art, etc) of the catholic church in Germany? Would they then belong to the newly founded German church? | Precedents And General Considerations There are cases of similar things happening in Protestant churches and it ends up being quite case by case fact specific with details of how title is held to property, the exact language of governance documents, since Protestant churches are organized at a governance level, and hold property titled in a variety of ways. Usually, the leadership determined in according to the pre-schism governing documents ends up getting the property. But there are property ownership issues specific to the Roman Catholic Church which don't have such clear precedents, because the Roman Catholic Church, due to its great antiquity, wasn't set up in the manner of modern non-profit corporations and associations the way that most modern Protestant churches are, for reasons partly historical, and partly because most Protestant churches are set up either as foundations or as democratically governed institutions with written governance documents tailored to modern legal conventions that are controlling, whereas the Roman Catholic Church, since its inception, has been a non-hereditary monarchy in perpetual succession managed by the College of Cardinals under Canon Law. For this reason, a determination of what would happen in the case of the Roman Catholic Church schism, in which more than one faction of the church claimed to be the legitimate successor to the pre-schism church's property, is even more uncertain and fact specific than in the Protestant church precedents. Among the facts that would matter are the stances taken by the respective factions. If one faction forms a new corporate form of organization and registers with the German government as a new church for church tax purposes, it would essentially cede all of the Roman Catholic church's property, even if it won over 95% of the members of the old Roman Catholic Church and 95% of its lesser clergy, particularly if the new faction did not have the backing of the Pope or the senior members of the pre-schism Roman Catholic Church hierarchy. This is a fairly common fact pattern in Protestant church schisms and is, for example, how schisms in the New England Congregational Churches played out when it was disestablished in the 19th century. Many of New England's formerly established churches, which were organized at a Congregation by Congregation level had board of directors who adopted a Unitarian Christian theological stance, rather than the Trinitarian theological stance shared by the vast majority of Christian denominations. Trinitarian Christians left when this happened and established their own new churches, leaving the property of the rump Unitarian Congregational church in the control of its board of directors. Governance And Title Issues The most common form of ownership of Catholic Church property, globally, is called corporation sole, although the Catholic Church owns property in a variety of means. As explained at the link: In the case of the Roman Catholic Church, ecclesiastical property is usually titled to the diocesan bishop, who serves in the office of the corporation sole. The Roman Catholic Church continues to use corporations sole in holding titles of property: as recently as 2002, it split a diocese in the US state of California into many smaller corporations sole and with each parish priest becoming his own corporation sole, thus limiting the diocese's liability for any sexual abuse or other wrongful activity in which the priest might engage. This is, however, not the case everywhere, and legal application varies. For instance, other U.S. jurisdictions have used corporations at multiple levels. In the jurisdictions of England and Wales, Scotland, Northern Ireland, and the Republic of Ireland, a Roman Catholic bishop is not a corporation sole, and real property is held by way of land trusts, a tradition dating back to the suppression of Roman Catholicism by Henry VIII during the English Reformation and the Penal Laws of Ireland. For example, some church property is owned by affiliated non-profit corporations with their own boards of directors, that aren't truly titled in the church itself which own lots of Catholic hospital property. Control of property held in this fashion would be determined by the board of directors for these non-profits, which might be afforded discretion to determine which Roman Catholic church is the true one, or even if that decision needs to be made at all. If the governing documents don't require direct input from the church into succession to the board of directors (e.g. if the board fills its own vacancies rather than having vacancies filled by the local Bishop), it may not be necessary to resolve the dispute at all. Even if the governing documents call for the hierarchy of the church to play a part in filling vacancies in the board, German courts might defer to the board regarding which faction's church officials are the ones with the authority to do so. Other moveable property like the clothing and toiletries and personal effects of individual priests doesn't have a certificate of title, but would probably be treated as owned by the individual priests. For property held in corporation sole, title is vested in the current holder of a particular title in the Catholic Church hierarchy. So, for example, a Cathedral in Bonn might be titled in the Archbishop of Bonn in a corporation sole, which means that the Archbishop has the authority of the shareholders, directors and officers of a regular corporation while in office, but when a new Archbishop takes office, that title passed to the new holder of the office, and the succession is understood to be governed by Roman Catholic Canon law as ultimately interpreted by the Pope. One possibility is that the Archbishop sides with the Pope's party, keeps office, and continues to own the property despite having lost many parishioners in the Diocese. This is pretty straightforward. But there are alternative possibilities. Suppose that the sitting Archbishop sides with a faction not supported by the Pope? At first blush, this would suggest that this Archbishop's faction gets the Cathedral and its contents. But suppose that the faction supported by the Pope and the Roman Catholic Church canon law establishment promptly removes the dissenting Archbishop, after he has already broken away. Does the property revert to the newly appointed Archbishop as his successor, or, by casting his lot with the faction that has broken away, has the Archbishop removed the property he holds in corporation sole from the Pope's faction and instead shifted the succession of that particular Archbishop's post to the new faction? This question doesn't have a clear answer. If all of Germany's Bishops and Archbishops and Cardinals and most of its priests united behind a breakaway German Catholic Church, German courts might be inclined to side with the incumbents in those posts, rather than Papally appointed replacements. But there is really no way to have certainty about what would happen in the situation in advance. In the Great Schism between the Roman Catholic and Eastern Orthodox churches, of 1054 CE, the affiliation of the local bishops is what largely prevailed in determining which faction of the church ended up controlling church property. The Precedent Of The Reformation Isn't Helpful During the Reformation, in the 16th century, what happened is that the secular feudal lord or king decided either to stay Roman Catholic, or to join the new Protestant Lutheran or Calvinist or Episcopal or Presbyterian church in the region, as the case might be. If the lord or king stayed Catholic, the Catholic church hierarchy got the Roman Catholic church's property in his domain, and the Protestant converts were persecuted as heretics. In the case that the lord or king sided with the Protestants, the Roman Catholic church property went to the feudal lord's new Protestant church, together with all priests and other members of holy orders who didn't refuse to swear allegiance to the new Protestant church, and all of the residents of his domain were converted to Protestantism (or faced persecution as heretics if they didn't) whether they wanted to or not, because this was considered to be a decision for the lord rather than for the individual. But obviously, that isn't what would happen in Germany today. Historical Succession Fights Within The Roman Catholic Church The other historical precent might be more apt, but equally unclear. There have been several times in the history of the Roman Catholic Church in which the succession to the Papacy was contested. In 20/20 hindsight we call the winners of those succession fights "Popes" and the losers of those succession fights "anti-Popes". The most recent spate of antipopes were Clement VII (1378), Benedict XIII (1394), Alexander V (1409), John XXIII (1410), although there was also a final antipope, Felix V (1439) (who abandoned his claim after less than a year voluntarily). The first antipope was Saint Hippolytus (217). There were 31 antipopes in between them (give or take depending upon how you count them and who you conclude qualifies). As Wikipedia explains: An antipope (Latin: antipapa) is a person who, in opposition to the lawful pope, makes a significant attempt to occupy the position of Bishop of Rome and leader of the Catholic Church. At times between the 3rd and mid-15th centuries, antipopes were supported by important factions within the Church itself and by secular rulers. Sometimes it was difficult to distinguish which of two claimants should be called pope and which antipope, as in the case of Pope Leo VIII and Pope Benedict V. . . . The period in which antipopes were most numerous was during the struggles between the popes and the Holy Roman Emperors of the 11th and 12th centuries. The emperors frequently imposed their own nominees to further their own causes. The popes, likewise, sometimes sponsored rival imperial claimants (anti-kings) in Germany to overcome a particular emperor. The Western Schism—which began in 1378, when the French cardinals, claiming that the election of Pope Urban VI was invalid, elected antipope Clement VII as a rival to the Roman Pope—led eventually to two competing lines of antipopes: the Avignon line (Clement VII took up residence in Avignon, France), and the Pisan line. The Pisan line, which began in 1409, was named after the town of Pisa, Italy, where the (Pisan) council had elected antipope Alexander V as a third claimant. To end the schism, in May 1415, the Council of Constance deposed antipope John XXIII of the Pisan line. Pope Gregory XII of the Roman line resigned in July 1415. In 1417, the Council also formally deposed antipope Benedict XIII of Avignon, but he refused to resign. Afterwards, Pope Martin V was elected and was accepted everywhere except in the small and rapidly diminishing area that remained faithful to Benedict XIII. Liturgical councils or actual wars and assassinations over the course of history resolved the various disputes, but as the Western Schism which took 39 years to resolve illustrates, the need for practical resolution of the question on the ground could come to head much sooner, and would have to be resolved by German secular courts in the meantime (possibly assisted by certified questions to the German Constitutional Court as freedom of religion issues under the German Constitution might be implicated) in the context of specific questions of control over specific items of tangible personal property and of real property came up. Pending final resolutions of these disputes on the merits, the German courts would probably impose some sort of temporary orders to adjudicate the immediate question of control pending adjudication of the issue on the merits, which might take some time to resolve, probably with many appeals (assuming that the dispute remained live, rather than being settled in some sort of agreement between the leaders of the respective factions claiming authority over the property). A Precedent of An Orthodox Church in Germany Commentator K-HB made on a comment on March 19 at 19:34 that is one of the most important precedents in this case, which I reproduce below with a few corrected spelling/punctuation issues: There is sort of a precedent from the conflict around St. Salvator in Munich. The church is property of the state (Bavaria) but was given for use to the Greek-Orthodox parish in 1829. In the 1970s the parish (or the crucial people) seceded from the Greek-Orthodox hierarchy. Bavaria wanted the church back in order to give it to the "official" Greek-Orthodox Church. After many years of litigation up to the German Constitutional Court and the ECHR [ European Court of Human Rights] Bavaria won. But if you read the judgments, you see that it belongs heavily on the individual case (historical background and current situation). The Role Of Germany's Church Tax One factor that might be decisive in resolving this is that German has what is commonly called in English language sources a "church tax" which is a voluntary deduction from worker's paychecks, along with taxes, that is automatically delivered to the church with whom the worker is officially affiliated in German government records. In that system, there are currently about 8 million people who are registered as Roman Catholics who participate in the system and have their payroll deductions turned over to the Roman Catholic church. The details of the administrative process in the German church tax system that determine who in the Roman Catholic church is authorized to receive the church tax payments from Roman Catholics in Germany would probably be highly influential in how secular courts adjudicating property ownership disputes between the factions would resolve those questions. | No, the result of an exam is not actionable. The court could only make a decision whether legal proceedings were met. However, the grader’s decision whether a particular answer (and thus the overall exam’s result) was correct or incorrect is not legal in nature. There is no German law saying “1 + 1 = 2”. Therefore, the court could not make a ruling on that, nor is it really their task to do so. Similarly, it is not the court’s (or the legal system’s) responsibility to ensure a certain share of students pass the exam. […] 93% not passing is just absurd. Welcome to Germany. Such exams did and do exist. I refer you to the local student’s body (specifically the Fachschaft). They will advocate for (future) students, especially if there are “design flaws” with the class to be found. Unfortunately, if it’s the “examiner’s fault”, there are no other options than finding an amicable solution. Sometimes, students change universities just to pass a certain module. | If the photos are exact or "slavish" reproductions of flat (2D) art, then under Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) the photos are not original, and have no copyrights of their own. If the art was not under copyright (for example published before 1924) then neither are the photos. If the art is still under copyright, the photos are "copies" and the permission of the copyright holder (of the original art) is required unless they fall under the fair use exception, which photos taken for and used in classroom instruction, and for no other purpose, might well fall under. However, if the photos are so taken that angle, lighting, filters, and other aspects under the control of the photographer make a difference to the photo, then they will generally constitute new works, and if the art is under copyright protection, will be derivative works of the originals, and both the copyright holder on the original art, and the photographer will hold rights. One rule of thumb is if the photo shows the frame of the painting, it probably has original elements of lighting and viewing angle. The more the photo approximates a scan of a flat work of art, the less original it is. Photos of sculpture, architecture, and other non-flat (3D) art works (and objects) inherently involve artistic decisions about viewing angle, lighting, etc, and will pretty much automatically be original enough for copyright protection. If the original art is out of copyright but the photo is an original work the photographer will hold rights, but no one else will (unless the photographer sells or transfers the rights). In that case it does not make much sense to call the photos "derivative works" as that term is intended to indicate that the works are subject to another's copyright, which these are not, because there is no copyright on the original. Or one could call them derivatives of a public domain work -- the effect is the same. Under the case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), a work must have a certian minimum degree of originality to be protected by copyright under US law. Both Bridgeman and Feist are US cases, but many other countries have followed their logic and apply similar rules to copyright issues. It is not uncommon for those who have taken photos of art to assert copyright protection which a court would not uphold, but this will not be judged unless someone copies these photos, and the photographer (or someone claiming through the photographer) sues, and then defense challenges the validity of the asserted copyright. The statements in the text quoted by the OP may be based (in part) on such untested assertions of copyright. | As for plagiarism, that is not a legal concept, so he can define plagiarism however he wants. It certainly isn't, under any definition I have ever seen on Earth and I have seen many (it has to do with "claiming someone else's work as your own"). As for copyright, a set of questions is (potentially) protected by copyright. If they are copied from somebody else's book of questions, then the book author (or publisher) holds copyright. Let's say that QM invented the questions, such as "What is the Turkish word for Janissary?", "What is the most prominent feature of Jannissary garb?" and so on. Then that set of questions, when put down in fixed form, are protected by copyright, and cannot be copied without permission. | Depending on the bridge, you might be trespassing in some way. Railway bridges are the property of the railway company, they don't allow to go there unless specifically allowed and even the absence of a sign is not an ok in those cases. Similarly, highway bridges usually are communal property and they don't need to be marked as off limits if there are laws that prohibit being there. The absence of signs and fencing is not a carte balance to go there: If your starting point for the climbing is not easily accessible, they don't have to fence it. But besides trespassing, you might make a huge dookey: Depending on the attorney general, you might be, in Austria, in violation of § 46 StVO for being a pedestrian on the Highway, as the bridge in whole is part of the highway structure. Even if you are under the lanes, you are technically on or inside the highway structure. If the attorney really wants you in, they could pull out § 89 StGB "endangerment" as well as the § 176 / § 177 "endangerment of the commonality" (by reckless or negligence). After all, you might or might not be climbing the bridge to perform something to endanger all the people using it. In Germany, you will get fined for violating traffic laws if you go onto railway tracks or climb onto a railway bridge as you violate the railway code and the minimum charge is 25 €. You could get also sued for Reckless endangerment of the train traffic (§ 315 StGB) and locked up for between 6 months and 10 years. If you do delay trains in any way (and even if it is to allow a crew to get to you), you are also liable damages - this is very easy in the 5 to 6 digits. Similarly, if it was a highway, you'd get billed 10 € for being on foot on a motorway without special privilege under $ 25 StVO and again, you could get jailed in extreme cases under § 315b StGB. | There is no "theft" without a law that defines what "property" is and what "theft" is. Laws derive from the state that has the power to enforce them. A state may issue the laws and decrees and stablish who owns the lands. It can later make changes to that ownership. When the Normans invaded England, Willian I became the legal authority and with that he could award, confiscate and keep lands as he saw fit, without that being considered "theft" in any legal sense of the word. The English government (and all others) still have the authority to take away, redistribute and otherwise change the ownership of lands as they see fit, and nothing of it would be theft. Internally most of them have chosen to stablish some procedures to ensure that this is only done when needed by meeting some tests (eminent domain), but even if they didn't have those (again, self-imposed) restrictions they still would be able to change ownership as they saw fit. That does not mean that a government using that power to punish political opponents or ethnic minorities would not face internal and external protests. | a few quick notes that come to mind. As the commenters point out: DSGVO is indeed the German equivalent name to the GDPR (English term) "Imprint" isn't a privacy related topic that much, as such it's not really changed by the upcoming GDPR The GDPR changes many things, but the requirement for up front information isn't one of them - so it would've already been a rule to follow Sometimes the question who is responsible for privacy information might not be that easy to decide when you're on platforms. I take this situation as being pretty clear though. You are basically given a blank slate, you can do with that page whatever you want, and the visitor has no clue whatsoever that it might be hosted by Github. In addition to this, Github would be classified as a data processor (providing the tool) and you as the data controller who is in charge of practically everything except for the provision of the page. I hope this helps. Btw. it's not that hard anymore to write a privacy policy these days. | Is a country an institution or an entity? Neither. It's a sovereign state (a "political entity", not an entity in the sense of a legal persona). |
How does NC's atheism prohibition fit with the 1st Amendment of the US Constitution? In 1971, the US State of North Carolina rewrote its constitution. According to this source, one of the purposes of this was that "Ambiguities and sections seemingly in conflict with the U.S. Constitution were either dropped or rewritten." Yet, the NC Constitution Article VI states: The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God. This seems to be somewhat in conflict with the freedom of religion nominally guaranteed by the first amendment to the US constitution, as a barrier to religious practice of community/political representatives. Is it? If not, why not? | 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. | Trivially, yes The First Amendment was adopted on December 15, 1791. Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do. The government can limit your speech The Supreme Court has recognized categories of speech which receive lesser or no protection from the First Amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc. They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic." It applies to parts of government which derive their power from Congress Which is, in most cases, all government. The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the First Amendment. Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to First Amendment restrictions. It only restricts government The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces. It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states. | The first amendment to the US constitution says: Congress shall make no law [...] abridging the freedom of speech, or of the press; [...] This constitutional hurdle is a very high obstacle to preventing the media from publicly saying something that is detrimental to the interests of the US government. Giving people the freedom to say "our government is wrong" without being afraid of repercussions is the reason why this amendment exists. And yes, freedom of speech includes the freedom to be wrong. When someone makes false claims in public to sway public opinion, then it's the responsibility of their peers to point out those falsehoods and let people decide by themselves who to believe. The government can of course also engage in counter-speech, for example by holding a press conference where they address claims made about them and present their side of the debate. But it is not the job of the government to use force to suppress falsehoods, because the government can not be expected to be impartial in this matter. The government not suppressing public discourse is one thing which separates libertarian states like the United States from authoritarian states where uncomfortable speech is suppressed. There are a couple exceptions. But as long as Carlson doesn't make any statements which are defamatory, obscene, fraudulent, violate copyrights or explicitly incite physical violence, the government's hands are tied. | 18 U.S. Code § 700 was held to be unconstitutional in Texas v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496 U.S. 310 (1990). If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. (Texas v Johnson) Mere flag burning is not illegal and is protected by the First Amendment. You may still be prosecuted for other crimes that happen while flag burning. For example, the flag may be somebody else's property. The Seattle appellees were also charged with causing willful injury to federal property in violation of 18 U.S.C. §§ 1361 and 1362. This charge remains pending before the District Court, and nothing in today's decision affects the constitutionality of this prosecution. (US v Eichman) | Basically, the author is saying that if the First Amendment were interpreted in the way described, as an all-purpose shield -- and therefore, journalists were not subject to libel laws, and could not be searched or deposed -- then journalists, being all but above the law at that point, would have a tremendous amount of power. There would need to be checks and balances to that power for the sake of justice, personal privacy, etc, lest we end up ruled by the press. The implication, and the point of the bolded part, is that these checks and balances must inherently weaken the protection offered by the First Amendment. So the Amendment can be seen as either an all-but-inviolable protection of the specific freedoms enumerated within, or as a general get-out-of-jail-free card that can be voided as community interests demand. It can not reasonably be both strong and overly broad. | Under the present constitution . . . Are there any consequences of the fact that the Constitution of Massachusetts and the Constitution of the United States use two different names for that state? No. Lots of the language in the United States Constitution is no longer in place or in common usage or is invalid due to subsequent amendments, and that language is still effective as originally intended. The U.S. Constitution has never been "amended and restated" and can't be understood properly without annotations to its raw text. Might a federal statute be needed for some states (e.g. Vermont, because of what is noted above) but not for others, because of differences in the federal statutes that admitted the state, or because of the lack of any need for admission by Congress in the case of the original thirteen states? Not really. Every state's name is embedded in myriad federal laws and regulations in addition to the statute that admitted the state to the United States, e.g. laws assigning names to post offices, laws allocating judgeships, laws purchasing property, laws appropriating funds, laws assigning states to various districts for purposes of executive branch departments and the judiciary, tax laws (e.g. the Obamacare tax credit), etc. Would a state statute suffice? Would a state constitutional amendment suffice? Would a federal statute suffice without a state statute or a state referendum? Would a federal constitutional amendment be needed? A federal constitutional amendment would not be needed. The Constitution vests Congress with the authority to admit states and to change their boundaries with the permission of the affected states. This would be within the power over states that could be inferred from those powers. A state and the federal government could each pass a statute to call itself something different for various purposes. For example, the official name of the state of Rhode Island is "State of Rhode Island and Providence Plantations" but various state and federal statutes authorize the use of the short form of the "State of Rhode Island" for most purposes. As a practical matter a state constitutional amendment would probably be desirable on general principles to officially change the name of a state, whether or not it was strictly required, in part, because a state constitution usually sets forth an official name of a state in its body text. It would be possible for a state to change its constitution and statutes and change its name in a move that the federal government did not accept, and if that happened, the federal government and its officials would probably continue to use the old name and the state government and its officials would probably use the new name. I think it is as a practical matter, unlikely that a standoff like this would persist, but I think that this is the most likely outcome. A federal government move to change a state's name without its consent proactively, however, would probably be struck down as violating federalism concerns. Of course, all of this is speculative, because there are really no precedents for disputes over the changing of a state's name. Context would influence the outcome of any such case. | Yes 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. | Your gut feeling is reasonably close, but not precisely correct. The Constitution sets the baseline rules for the powers of and interactions among the branches of the federal government, as well as the powers of and interactions between the state and federal governments. With only one exception (the dilution of a state's representation in the Senate), the Constitution can be amended to basically anything. It can make anything legal and it can make anything illegal. It generally addresses fairly high-leval legal principles, but there's no reason that it couldn't be amended to include a 9,000-page law specifically addressing every conceivable aspect of the regulation of nuclear energy. As it stands now and as it always has, the Constitution permits the federal government to write laws only with respect to certain topics. The states, meanwhile, retain authority to write laws on virtually any other topic. There are a variety of legal and historical reasons why prohibition took the form of a constitutional amendment while drug laws are handled legislatively, but one important consideration is the scope of Congress's power to regulate "interstate commerce." At the time of prohibition, it was not clear that Congress could regulate commercial activity that took place entirely within a single state. So if you grew all the ingredients for your whiskey in Kentucky, and you distilled those ingredients in Kentucky, and then you sold your whiskey in Kentucky exclusively to residents of Kentucky, it seemed that your conduct was outside the reach of Congress, and that any attempt to regulate it would be vulnerable to a constitutional challenge. The solution, therefore, was to amend the constitution and give that authority to Congress. About a decade after prohibition ended, though, the Supreme Court decided that the power to regulate interstate commerce includes not just transactions that cross state lines, but also any conduct that “exerts a substantial economic effect on interstate commerce” Wickard v. Filburn, 317 U.S. 111, 125 (1942). This broadens the Commerce Clause authority to cover virtually any economic activity. So even if you buy marijuana seeds from your next door neighbor, plant them in your own back yard, grow them for strictly personal use in your own home, and never sell anything to anyone, the courts will hold that your conduct affects the interstate market for marijuana, and is therefore subject to federal regulation. This standard substantially lowers the bar for Congress to act without a constitutional amendment, which is a big part of the reason there hasn't been an amendment to address narcotic use. |
Can a shortened name be used in legal documents in the UK? Suppose a person in the United Kingdom has a name in their birth certificate and passport, with a contraction of this name being common. Can this person use the contracted form (e.g. Chris instead of Christopher or Christian) on legal documents such as an employment contract or lawyer correspondence, while their full name is used on government documents such as the birth certificate and election enrolment? If limitations on this usage exist, what are they, and what is their basis in law? | 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. | Yes. There are two different meanings of "to execute" in law. Also note that terms can vary in different jurisdictions. In the UK, most people wouldn't use 'to execute' when signing a Will - they'd just sign it. 1. To bring a written document into effect. Any mark made by the testator on the document validates the will, provided that they intended it to be their signature, and that this signature is meant to execute the will. https://www.thegazette.co.uk/wills-and-probate/content/100522 The Witness Requirement to Execute a Will A will typically must be properly witnessed to be valid. https://www.alllaw.com/articles/nolo/wills-trusts/witness-requirement-execute.html Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading. http://www.justice.gov.za/master/m_deseased/deceased_wills.html The term "execute" is not restricted to Wills: When a person "executes" a document, he or she signs it with the proper "formalities". For example: If there is a legal requirement that the signature on the document be witnessed, the person executes the document by signing it in the presence of the required number of witnesses. https://www.apostille.us/faq/what-does-it-mean-to-quotexecutequot-a-documen.shtml Documents are most commonly executed as simple contracts. ... Deeds can also be advantageous even when they are not strictly required by law. For example, if only one party under a contract is receiving a real benefit from an agreement, it would be advisable under English law to execute the contract as a deed so that it is not void for lack of consideration. Another potential advantage of deeds is that they have a longer statutory limitation period than contracts: twelve years. However, a deed requires some additional execution formality beyond a simple signature. Deeds must be in writing and will typically be executed in the presence of a witness, although in the case of a company a deed may be executed effectively by two directors or a director and the company secretary. https://united-kingdom.taylorwessing.com/synapse/commercial_execution.html 2. To carry out the instructions in a Will of a deceased person (in the UK the corresponding role in relation to an intestate estate is an administrator). An executor (male) or executrix (female) is the person named in a will to perform these duties. An administrator (male) or administratrix (female) is the person appointed by the probate court to complete these tasks when there is no will or no executor or executrix has been named in the will. http://www.attorneys.com/wills-trusts-and-probate/executor-versus-administrator Executors and Administrators are responsible for administering the Estate of someone who has died. They are known collectively as Personal Representatives. The Executor’s authority is taken from the Will, and comes into effect immediately on the death of the person who made the Will. In theory, the Executor can exercise all their powers from the date of death. https://www.co-oplegalservices.co.uk/media-centre/articles-may-aug-2017/the-difference-between-an-executor-and-an-administrator/ | The gov.uk website has a page devoted to this specific matter. With reference to the issues mentioned in the question: It seems to imply that form RX3 may not be necessary: "Download and fill in the form to cancel a restriction, if one has been registered." Regarding the cost: "Send the form and documents to HM Land Registry’s Citizen Centre. There’s no fee." As the website makes clear, even without form RX3, there are still a number of other documents that must be submitted. It also states that you can apply yourself, or use the services of a legal professional. | Stating "This is not blue" or "TINB" on something that is self-evidently blue is of no legal effect Legal advice has the following characteristics: Requires legal knowledge, skill, education and judgment Applies specific law to a particular set of circumstances Affects someone's legal rights or responsibilities Creates rights and responsibilities in the advice-giver If the advice you give meets these criteria then it is legal advice. However, if you are clear that you are not a lawyer and that you are not giving legal advice then this undermines the characteristics above. That is, what would be legal advice without such a disclaimer may lose that characteristic if the disclaimer is genuinely given in the particular circumstances. Context matters: "this is not legal advice (wink, wink)" is not a disclaimer and doesn't turn legal advice into not legal advice. Similarly, the disclaimer must be genuinely understood by the recipient so that they are adequately warned to do their own research or seek actual legal advice before taking the course of action outlined. Using an abbreviation is more likely to be misunderstood but, again, context matters. In the context of this particular site (see various meta questions), which goes out of its way to explain that this is not legal advice the disclaimer is hardly necessary and the abbreviation would be fine. More generally Communication is always under tension between clarity and brevity. It should be detailed enough that it can be understood by its audience but not so long that its audience switches off. Abbreviations, acronyms, symbols and jargon (all of which I’m going to abbreviate to abbreviations) sacrifice clarity for brevity. Depending on the context and the target audience an abbreviation may or may not need to be spelled out in full. In formal writing, it is good practice to spell them out when first used and put the abbreviated form in parenthesis immediately afterward. Alternatively, scientific and engineering reports may use a glossary at the front or back to list them all in one place. It is extremely good practice to explain these abbreviations in any document that is intended to have direct legal consequences like legislation or a contract. Here clarity is waaaay more important than brevity. In a similar vein, it is quite common for such documents to explicitly define real words that already exist to narrow or broaden their scope in the interests of clarity. However, sufficiently common abbreviations may not be spelled out even in these. For example, USA, UN, UK, and EU are in such common usage that they would not need to be spelled out. Similarly, state or province abbreviations would not need explanation within their own country - while an American should know what IA means they might struggle with NSW. Similarly, some contractions may be so common within a profession or industry that no explanation is needed. For example, no scientist or engineer would need to be told what Pa, N, and m mean. In more informal settings (like texts or WhatsApp chats) spelling them out would make you look like a pompous dickhead. If it's sufficiently clear that a reasonable person in the position of the recipient would understand it then legal consequences can flow from it. Ultimately the decision of it it was clear would be a matter for whoever was deciding any dispute about it. | The question is definitely specific to a jurisdiction. I think this is legal in the jurisdiction you specify. Wikipedia shows incest in New York defined as: Persons known to be related to him or her, whether through marriage or not, as an ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece. I don't think "our children have married" means the couple is related "as brother and sister through marriage". In England and Wales, this would definitely be legal. Wikipedia lists the relationships that cannot marry, and co-parents-in-law are not on the list. (The table is probably out of date, in that the "for men" and "for women" column should almost certainly be merged.) | Let me be sure that I understand the situation. You set up an account with Big Company, which uses BigCo as a trademark. You want email about that account to reach you with a unique address, so you set up '[email protected]" and gave that as your email when setting up tha account. You don't plan to use that address for any purpose but communications from BigCo to you and from you to them. (Of course these aren't the actual names.) Have I understood the situation correctly? It seems that you ar not using 'BigCo" in trade, nor are you likely to be confused with an official representative of BigCo, so you are not infringing their trademark. However, someone using such an email more generally could perhaps be so confuse, so BigCo has a somewhat legitimate concern, as they cannot know the very limited use you plan to make of this address. The only way that the could force you not to use such an email address would be via a court order as part of a suit for trademark infringement, whcih under the circumstances I doubt they would get. However, unless they have some sort of contract with you to the contrary, they can control who registers on their site. and could refuse to register you using an email address that includes their name or alias. Convincing them to accept your registration, even though it does no harm to them, will almost surely be more trouble than it is worth. Give them "[email protected]" or something else that is not their name, but will suggest their name enough that you will know who it is. This will serve your purpose fully, and avoid a long argument with people who are reading from a script (once you get past the automated process, if you can even do that). This is all assuming that I have understood the situation correctly. I am also largely assuming US law, since you didn't mention a jurisdiction. (EDIT: UK law should not be very different on these points.) | 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. | It would not be a copyright. Names and short phrases are not subject to copyright, but it could be a trademark under common law ( e.g. state law in the U.S.) or could be registered. Some people think a trademark defines a product. That is not the case, a trademark identifies the source of a product or service. |
is it legal to take a service without paying for it? I've been going to a gym for 2 years now, but have noticed that the gym has stopped taking the monthly fee from my bank account for some time now. I've been able to go to the gym normally though. Yesterday I was told by the guy behind the counter that my subscription is not valid anymore. He said it was frozen several months ago. Today I received an email asking if I want to un-freeze my subscription. Obviously, there has been a mistake in their system. Morals aside, would I have to fear any legal repercussions if I wouldn't make them aware that I have been using their service for several months without them knowing about it (and being paid for it)? | It looks like the gym was allowed to take the money out of your bank account and didn't. They didn't notice that they didn't take your money, so they can't really expect you to notice it. So you haven't done anything that would be criminal. The bigger question is how much you owe them. If you used the gym all the time, like someone paying monthly would do, they will most likely have the right to payment. That's not unlimited, there will be some "statute of limitations" so they can't ask you for 30 years back payments, but with less than two years they probably have a right. If they raised prices, it's unlikely the would have a right to that because they never told you. The situation while your subscription was frozen is interesting. Basically you just walked in, used the gym without paying, but they didn't stop you in any way. I could walk into your gym, ask if it is Ok to use it, and if they say "yes" and don't mention payment, I'm in. So for this time you can argue whether or not you owe them money. Summary: You haven't done anything criminal. You most likely owe them money. About the money, they can take you to court if you don't pay which will cost both sides money. Since you did use their service and other users did pay, the morally right thing would be to pay what seems fair to you, possibly with some negotiation. And legally, you might consider paying them enough to make both sides happy enough so you can stay a gym member and don't get sued for the money. | Exactly the same way it works over all other content There are no special classes of copyright, there’s just copyright. What a user of a service may do with copyright materials will be spelled out in the licence. If there is no licence, then they are left with fair use/fair dealing. | If you are given a paid job, and you do the work, then "consideration has been provided", and 1682 will not apply. As to "referral fees" those sound more like kickbacks, but it depends on what, if anything, the person gets for the fee. | You would likely have to show actual damages. And for example if you had a chance to buy a car worth $11,000 for $10,000 and couldn't because of the bank freezing your account, you'd have to convince a judge that the $1,000 possible profit was actual damage. Next you need to show that the bank explicitly guaranteed that your money would be accessible at any time. And assuming that blocking your account to prevent fraud against you was reasonable, how negligent were they when they couldn't unfreeze your account as quick as you would have liked? | If this requirement was not made before rendering the service, you are under no obligation to accept the term. You and the service provider must now find an agreeable method of payment. You still owe the provider but if you are compelled to pay then the provider will be compelled to be more accommodating in their allowed payment methods (cash, at least). As a general rule, if you are providing a service for any significant amount of money, you should require payment up front or at least a deposit and payments at milestones. Especially if you're 7,000 miles away from your client and put any restrictions on method of payment. | You do have a contract - you agreed to pay them for services, that creates a contract. If they have failed to provide the service that you paid for, the onus is on you to prove that. Getting a bank to make a chargeback when services have been provided in return for the payment is likely unlawful notwithstanding that you are not satisfied with the service they provided. They can sue you in either Bulgaria or the USA and a judgement in one countries court will likely be enforceable in the other. In addition, if you have committed a crime in Bulgaria then the Bulgarian police may investigate and may issue a warrant for your arrest and seek your extradition from wherever you happen to be. | You owe money if there is a contract obliging you to pay. Whether you receive what you pay for (e.g. services) only affects your stance when suing for non-performance/damages; your obligation to pay still stands until the court decides it does not (or there is a mutual agreement to discharge the contract). It is irrelevant whether the original payment method still works or not. If it does not but you still owe money — you have to pay. The ability to turn the credit card off is just a handy feature. It does not affect your contractual obligations in any way except for when the terms explicitly provide for it (like automatic cancelling subscription when payment method fails). | I do not have the phone number, email, or anything else associated with the account. Well, neither do I - so it must be my account. Unfortunately, the fact that you appear in most or all of the pictures on that account does not prove that you own it. It could be the photographer's account. Do I have ANY options here Can you reactivate the email account associated with the Twitter account? Or the phone number? Either would allow you to reset the password and access the account. You can go to court (in California) and seek an injunction ordering Twitter to delete the photos or give you access. Of course, you have the same issues proving ownership here as you did with Twitter but the court may have different priorities (justice) than Twitter does (corporate protection). I had an idea. If you (or your husband) own the copyright in the photos (i.e. one of you was the photographer) you could issue a DCMA take-down notice because the poster (who, according to Twitter, isn’t you) does not have permission (even if they did at the time: permission can be revoked). Twitter would be unable to contact the account holder and would be required to remove the images when they got no response.of course, if the photographer was someone else, they could do it. Or you could break the law and say it was you, although I would never recommend this even with a near zero chance of being caught. |
UK: Can tradespeople park in a "permit holders only" residential area? I am looking for a "buy to let" property in Nottingham. Most of the places I look at have "permit holders only" signs on the road. I am wondering how I am supposed to get tradespeople in to work on the property if they cannot park nearby. | As these are "on the road" restrictions, I assume they fall within Nottingham City Council's Parking Permit scheme which states: Anyone who can prove they are a resident within a scheme area and are in an eligible property can apply for a Residents Permit. ... The maximum allocation of permits per household is 3 and this is made up of any combination of residents or visitors permits. ... Vehicle specific Resident Permits require: A copy of the Motor Insurance Certificate (not required for visitor permits) Residents living in a flat (i.e. a house converted into separate properties) will also be required to provide a water rates bill. So, in answer to "Can tradespeople park in a "permit holders only" residential area?": Yes, the solution is to have one or two visitors permits ready for use by tradespeople so they can park nearby (and not forgetting to get them back once the work is done as they cost £25 to replace). Edit to add the following: Nottingham also run a Business Parking Permit scheme, and one would assume that Nottingham-based tradespeople would be aware of this and apply for their own permits. Also, following @richardb's comment observing that the landlord may not be resident in the scheme's area so they won't be eligible for a Residents Permit, and assuming that the buy-to-let is run as a business (most are) then the Business Permit should be a viable option if they pay the fees and provide the following: A copy of recent business rates or utility bill dated within the last 3 months containing the business name and address printed on them Vehicle specific permits will also require a copy of the motor insurance certificate | Possibly In most contracts, the parties sign in their capacity as people (or agents for other people). However, some contracts are signed in the capacity as the owner of a piece of land and the contract transfers with the land. The liability rests with the current owner and, if unpaid, creates a lien over the property. These are particularly common in contracts with utilities or where the contract involves the a structure on the land. Surprise, surprise, the situation you describe involves both. You need to refer back to your contract for the land as these types of contracts are usually disclosed (unless they are a function of local law because everyone just knows - I don't know anything about Pa. law on this) and the original contract with the gas company. Your settlement may have also involved you paying a figure to purchase the gas in the tank as at the date of settlement. For example, in new-south-wales, council rates and water rates attach to the land as a matter of law and the vendor pays the purchaser for any amount they have paid in advance (or vice-versa if they are in arrears). Electricity and piped gas don't; the vendor ends their account on or before settlement and the buyer opens a new account on or after settlement and each pays for their own use. Propane for portable bottles doesn't but for fixed installations does as a matter of contract with the gas company. | I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise. | 40km/h There is no ambiguity. The speed limit on the through road is clear and the speed limit on the side road is irrelevant. The fact that Bob may be legitimately unaware that this is the speed limit doesn’t matter either. If you want to ask if Bob has a defence if issued with an infringement notice, please feel free to post a new question. | Because the ordinance does not say "and from each entrance", it cannot be interpreted to mean that the signs must both be visible and readable anywhere in the area as well as being visible and readable from the entrance. The use of distinct prepositions in the conjuncts means that the notice requirement can be satisfied by different signs: it's not that a sign has to have both properties. | You are allowed to sublet the whole of the premises but not part of it (VIII a); if you do you must create the agreement mentioned, pay to have it stamped by the government and pay £10 + VAT to the landlord. You must only use the premises as a domicile for one family; better make sure you rent those rooms to your cousins. | See Brindley Twist Tafft & James LLP, "Focus on the Mortgage Repossession (Protection of Tenants Act etc.) 2010 [sic]". If the tenancy was an authorized tenancy under the terms of the mortgage: The Bank may still take possession of the property but they may have to do so subject to your occupation. The practical effect of this is that you would be allowed to remain living in the property subject to the terms of your tenancy agreement but you would see a change in the identity of the Landlord. It is possible for the tenancy to be brought to an end but in accordance with the terms of the tenancy agreement. If the tenancy was not authorized: Under the Mortgage Repossession (Protection of Tenants Act etc) 2010 [sic] (the “Act”) an unauthorised residential tenant is however entitled to request that possession be delayed for up to two months during which time they should try to find alternative accommodation. | 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. |
Is it legal for energy companies to break into a house? There are a couple of stories in the news about energy firms breaking into houses because of unpaid erroneous bills. The common features of relevance are: There was debate about the validity of energy bills at a premises The errors are so obvious that if a court had issued a warrant then that would have been news, and there is no mention of a warrant The property was entered while it was empty, by the front door lock being picked or drilled The entry occurred while the premises were unoccupied The premises was left without anything being taken after the error became obvious The energy company apologised and appeared to admit the event, but no criminal charges are mentioned Assuming there was no warrant, is this legal? Does it matter that the debt was not owed, or would it be the same if the homeowner really owed their energy company money? | The two cases are very different. The first involves a debt collector entering onto property in connection with an allegedly overdue utility bill, which is something a debt collector ordinarily would not be permitted to do without a money judgment following a court proceeding and further court orders authorizing collection of the debt from tangible personal property on the premises. This is pretty much completely without justification and realistically is a criminal offense as well as a basis for a civil lawsuit, although the modest money damages involved may have made such a lawsuit ill advised for the resident impacted by the unlawful entry. Notably, in this case Scottish Power, "admitted the error, apologised and offered compensation." I doubt that an American utility company would have had the good sense and grace to act the same way. The story doesn't make entirely clear if these were Scottish Power employees or debt collection contractors hired by Scottish Power. The question implies that abusive utility company collection agents are a systemic problem in Scotland, although the article itself does not. The second involves a utility company, Scottish and Southern Energy (SSE), drilling a lock to enter onto property in order to check a utility meter, in a building where some other tenant at a different address was not paying an electric bill on a different meter, which presents a very different issue. The customer at the address drilled had reasonably documented the utility company's mistake, but the company, for some reason, didn't believe the customer and didn't make arrangements to visit consensually when the customer was home. Instead, while the customer was work on Wednesday two male SSE workers drilled through the lock to gain entry into the flat, and when they got in and looked at the meter, they realized that they were mistaken. The fact that the story describes the two men as a "warrant team" leaves open the possibility that a warrant for entry was received from a court based upon bad information from the utility company when it should have known better, although that issue isn't clarified in the story. The customer “lodged a formal complaint against SSE for unlawful entry and reported the incident to the police.” And an ombudsman elevated the issue. According to the utility company, it "offered to replace all the locks in her property and offered her a goodwill gesture payment of £500. Both were rejected by Ms Harvey who wanted compensation for further rental, hotel and new property costs which we were unable to agree to." Utility companies will generally have an easement or some similar legal right to enter onto a customer's property to read a utility meter or the deal with something broken on the premises that affects the larger utility system such as a short circuit that is bringing down the power of everyone on the block, without notice in cases of emergencies. So, in this case, the issue is not the absence of a right to enter somewhere, but the fact that the utility company went to the wrong place (where it may very well have had no right to enter because there may have been no utility meter to check at that location), which in and of itself, would be mere negligence if it hadn't received such clear communication from the customer and ignored it, and secondly, whether the method it used to gain access to the property in the good faith belief that it had a legal right to enter to gain access to the property was reasonable. Charitably, it could be that the utility company had a key allowing it to enter and read the meter at the proper address, but that key didn't work because they were at the wrong address and the utility official may have mistakenly believes that the lock was broken rather than that the address was wrong. In that case, the question would be whether it was reasonable to force entry in a non-emergency case like a meter readings, rather than trying to contact the owner to resolve the question, which it probably was not. It isn't quite as obvious that this would be a criminal trespass, because ordinarily entry onto property under a claim of right, even if mistaken in good faith, does not constitute criminal conduct, although a claim of good faith in a context where the company as a whole knew better even if the right hand may not have known what the left hand was doing, probably doesn't hold up under agency law that imputes the knowledge of any agent of the company to the company as a whole. But, while the company may have committed a crime, the two workmen detailed to do the work may have been acting in good faith personally, and may have even had a warrant. Certainly, the utility company should have liability to repair any damage that was done to the premises in order to gain entry that arose from its negligence in going to the wrong address and its unreasonable failure to confer with the customer about the problem in a non-emergency. SSE would probably be well advised to admit with good grace that it was in the wrong and to pay the still very modest amount that the customer claimed for an alternate rental, rather than fight this issue where its fumbling became not just rude but abusive. | The clause refers to what might be a lawsuit, which can be adjudicated in appropriate government courts (cf. the choice of law clause), but instead would be submitted to an arbitrator. The contract will spell out the details. An offence is a punishable criminal act, which is outside the scope of civil suits. In US law, the government prosecutes the wrong-doer, not e.g. one of the parties to the contract (if for example the vendor ships an illegal substance to a customer). The same goes for a "breach of law", depending of course what you mean by breach of law. A breach of contract could not be pursued in court, given a mandatory arbitration clause. The fact that the two parties are in different countries does not nullify a mandatory arbitration clause, at least between the US and the UK. | Your problem is not just that you don't have a working stopcock, but that you now know that you don't have one. Of course it's not illegal by itself, the problem is what is going to happen if you have an insurance case. Your home insurance most likely has to pay for accidental damage. But any damage that would be caused by not being able to close the stopcock, when you knew it wasn't working, they could claim that this is due to gross negligence. Whether they would succeed with that claim or not, I don't know, but fixing the stopcock seems to be a much, much cheaper solution. PS. Seems I made a wrong assumption here - that it was your home, owned by you. The same reasons that would have made it a good idea for you to fix the stopcock obviously make it a good idea for the landlord as well. So I would make sure that you tell the landlord as soon as possible. If something goes wrong, and the insurance doesn't pay, your landlord would be responsible for the damage. Whether it's legal to not fix the stopcock - that's a different matter. I thought you were the owner. You would have endangered yourself and your property. Nothing illegal with that. But with the landlord it's different; he wouldn't be endangering himself but someone else's property. | Landlord or tenant responsible for the furnishing damaged after a flooding? This brief analysis of Scandinavian Contract Law explains the difficulty of addressing with certainty matters of Swedish contract law. Despite the legal and factual ambiguities, it seems to me that the contract terms and landlord's conduct preclude his entitlement to a reimbursement from you. (Disclaimers: I have never litigated in Sweden's courts; I do not purport to be knowledgeable about Swedish law; and it is unclear to me whether Swedish contract law has evolved since the date of the publication of Ramberg's criticism of Scandinavian contract law) First, it appears that the landlord was negligent by waiting several days to ask tenants to remove moldering furnishings (as these were starting to smell). If that was the landlord's earliest reaction to the flooding, then the delay might evidence [landlord's] failure to mitigate damages. In other legal systems, failure to mitigate damages is an obstacle to recovery from the sued party. Second, the landlord's unqualified instruction to throw everything away --in response to your proposal of checking for salvage-- might forfeit his entitlement to reimbursement. In this regard, page 4 of the aforementioned publication points out that [t]he Swedish Supreme court [...] generally stated that a contract containing the standard terms was deemed to have been concluded due to the parties' behaviour. Obviously, not all of the contract would be void, but only the application of the clause about tenant's financial responsibility for missing or damaged items in this particular context of landlord's delay and reckless response to your proposal. Third, in the clause regarding tenant's financial responsibility "to replace missing or damaged items", I would say that the qualifier "missing" is key. Here, the usage of "missing" connotes a deliberate act of taking items away in violation of the landlord's proprietorship, regardless of whether it was the tenant or a third party who removed/stole them. That same connotation of deliberate act should govern the very next qualifier, "damaged", absent any language that expands the latter's connotation of causality. Also a criterion of negligence would fail, because you were not notified that a flooding occurred. The contract's clarification that their "insurance doesn't cover [your] personal belongings" opens --albeit weakly-- the door to the possible interpretation that instead the policy covers the counterparty's (that is, the landlord's) belongings. On the other hand, the landlord could avail himself of arguments such as (1) tenant should have made arrangements prior to leaving for the holidays; and (2) landlord's bed & mattress were not intended to be stored in the basement, and instead should have been notified toward procuring an appropriate storage for them. It is hard to make a more precise assessment without knowing more about the terms of the contract and the circumstances. Therefore, the best thing to do is to look at the subtleties in the language of the contract (as I did above regarding the deliberate nature inherent to the adjective "missing" and its interpretative effect on the adjective "damaged"). | No, filing a police report in good faith does not expose you to liability Of course, making false allegations or allegations where you are recklessly indifferent to the truth to police is both a serious crime in itself and defamation. Of course, breaking a contract is not a crime and the police are unlikely to take any action. If you borrow money from the bank and don’t pay it back, that’s not stealing or fraud unless it can be proven that you had no intention of paying it back when you borrowed it. This is a civil matter for the bank, not a criminal matter for the police. | In general, you do not have civil recourse against the government for (lawful) legal process that you are the victim of. "Counterclaim" would only be applicable when A sues B, and B makes a counterclaim against A – the police don't sue you, they arrest you, and the prosecutor prosecutes you (or decides not to). If the police beat you up, you could sue them for violating your rights, under what is known as Section 1983. Given the scenario you describe, this comes closest to involving false arrest, meaning that there was no probable cause for arrest. Otherwise, the police have immunity for their actions. But if there is a legal arrest warrant, there is probable cause (existence of probable cause is the standard for issuing an arrest warrant), so no claim against the police will succeed. I am leaving out the anomalous concept of an unlawful arrest warrant, where a judge issued an arrest warrant but there is in fact no probable cause. Such a case would be covered by Section 1983, where either the judge or the swearing officer (or both) violated your rights. | Residents agree that the receipt of mail by any individual not listed as a Resident or Occupant in this Agreement at the Leased Premises shall be proof of occupancy of that individual and a violation of this Agreement. I assume that the lease states that only the listed individuals can reside in the unit. Maybe they think that this says that receipt of mail by an unlisted person is a further violation of the lease, I don't think that is clearly enough stated that the courts would agree that receiving mail is itself a violation of the lease. Instead, it seems to be intended to say something about an existing clause – you can't have other people living there. The courts would look at the requirements of the lease, and ask "did you comply"? The question of whether you did a certain thing is a question of fact that has to be resolved in court. However, the revised lease language does not state that all mail must be addressed to Johnny Johnson – it only addresses receipt by a person not on the lease. You are (apparently) on the lease, so you may receive mail there. Nothing in the lease controls how such mail can be addressed. If you receive mail addressed to Tommy Thompson, your defense is that you received the mail, and you are on the lease, so you will not have violated the new clause. | A promise that a court would not enforce by injunction can still be valid consideration and be part of a valid contract. Failure to carry out such obligations would lead to some measure of money damages, most likely. On the other hand, provisions specifically barred by law, or against public policy, such as a promise to commit a crime, are void from the start, and form no part of a valid contract. Such provisions may be treated by a court as if they had just been left out, or if they were essential to the contract, or formed the sole consideration, the whole contract might be considered void. If a term is too vague for a court to determine if it has been violated or not, the court may try to clarify it, or may just ignore it. Just what it would mean for a tenant to "undermine the leadership" of a landlord is not clear to me, at least. That might well be held to be "too vague". As to "not complain" it may be that a tenant has a legal right to make official complaints, which cannot be waived by contract. Or it may not, depending on the local laws. |
USAMRIID is US Military - are they allowed to deploy domestically contrary to Posse Comitatus in response to biological outbreaks? This is a question that was raised after watching several TV series on streaming services. It revolves around the United States Army Medical Research Institute of Infectious Diseases (USAMRIID) and activity of USAMRIID on US Soil and whether legally they can be deployed or can act within the United States in the event of a major viral outbreak or other type of situation where they and their scientists are the 'front lines' of a major Biosafety Level 3/4 outbreak domestically. Origin of the Question A 1995 movie called "Outbreak" details a fictional viral outbreak of an infinitely lethal pathogen. This pathogen essentially infects an entire town and USAMRIID and US Military are deployed to cordon off the town and act alongside CDC to help identify and then attempt to create an antigen for this fictional pathogen. However, there was a US Army military cordon used in the movie to isolate the affected town. Two seasons of a series called "The Hot Zone" exist (based on actual real life events, i.e. Ebola Reston and Amerithrax responses and investigations), the first one detailing the Ebola Reston situation where there was an Ebola outbreak in Reston at an animal quarantine place holding monkeys. USAMRIID deployed during that first season to sterilize the facility, neutralize the monkeys, and get samples of Ebola Reston to USAMRIID for study. They operated as a military operation to get in, sterilize the threats, and get out without being seen, however as everyone involved was USAMRIID, they were technically military, so it stands to reason they are not permitted to deploy domestically. The Question We know that the Posse Comitatus Act (18 U.S.C. § 1385) limits the ability for the federal government to deploy US military personnel to enforce domestic laws and policies within the US. However, while USAMRIID is a US Military operation out of Fort Detrick, there still seems to be a lot of movies showing USAMRIID deploying in response to domestic biosafety level 3 and level 4 situations, adn then in turn acting in regards to those situations. I know these movies are dramatizations, and not based in actual US legal cases at times, however I know that USAMRIID along with CDC personnel were involved in eradicating the Ebola Reston 'outbreak' before it spread beyond the quarantine facility. Does USAMRIID operate outside the Posse Comitatus Act, in that they can coordinate and act on US soil in response to biological threat situations, or are they bound by Posse Comitatus and are not allowed to act to enforce biosafety in the event of outbreaks of BL4 agents like ebola or other filoviruses? This question is looking for answers based in law and precedent related to Posse Comitatus and whether it affects USAMRIID specific activities states-side in response to biosafety situations. Precedents to support statements are desired in this case. | The article "The Posse Comitatus Act..." analyzes the legal restrictions on use of military power arising from that act. Following US v. McArthur, 419 F. Supp. 186, where the act played a role in trials related to Wounded Knee, it was found and subsequently supported in various ruling that the use which is prohibited by the posse comitatus statute is that which is regulatory, proscriptive or compulsory in nature, and causes the citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority. Mere "involvement" of "deployment" of the military is not contrary to the act. It should also be noted that the act includes a provision for actions expressly authorized by Congress, as was the case of the Espionage Act of 1917 and the related Magnuson Act of 1950. Hypothetically (in extremis), Congress might pass a law requiring the seizure of persons infected with a disease. If Congress expressly authorized USAMRIID to effect such seizures, that would not be in violation of the act. Otherwise, it would be. Since USAMRIID is a research lab and not an enforcement arm of the military, it is both highly unlikely that Congress would authorize such activities or that USAMRIID would get involved in this way. W.r.t. their ordinary operations, scientific research, nothing in what they do that contradicts the Posse Comitatus Act. Since we are dealing in hypotheticals, I should point out that SCOTUS has so far not definitively endorsed the "regulatory, proscriptive or compulsory" test, so that test could be overturned, though it is unlikely to be. | Laws against such actions are not stated in terms of popular and fluid concepts like "computer virus", they are stated in terms of clear concepts like "unauthorized access". There are federal and state laws against this. This web site lists and links to all of the state laws on the matter. There is also a federal law: a detailed legal analysis by DOJ is given here. There are some limits to federal jurisdiction, for example "protected computers" include "computers used in or affecting interstate or foreign commerce or communication". The term "affecting interstate or foreign commerce or communication" is widely used in federal law, and can be used to prohibit growing feed for your own animals. Anything that you "send" clearly affects interstate commerce (the internet is internationally connected). 18 USC 1030(a) says Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains...(C) information from any protected computer Essentially, a computer connected to the outside world is protected. The key here is "without authorization". If you authorize MS to report back stuff about your computer, that is not unauthorized. It may not be possible to use their product without giving such authorization, in which case you can use a different product that doesn't require that you grant authorization. There is also the possibility that some software producer has technically violates the law because they think that it's okay for them to access the computer as long as they do no harm. Typically, people are not aware that they have granted software publishers access to their computer. The concept of "harm" is pretty much irrelevant to computer-crime criminal law. It would be relevant, though, if a plaintiff were to sue someone for sniffing around their computer: then you'd have to show that you were damaged. | There is no law in the US that says you must tell the truth on the internet. Some places where one must tell the truth are: When speaking to police, the FBI, and most government agencies When filing your taxes with the IRS In certain business contracts When testifying before Congress But on the internet, you can claim to be the first man on the moon with impunity. If someone is gullible enough to believe you and send you money, that is their fault and responsibility. As far as eating a Pangolin, why should she "admit" it, when it was documented on Instagram? There is no duty to officially apologize for it. You can try to report her to the US Fish and Wildlife Service, which enforces the Endangered Species Act, but as it occurred outside the USA, they will be powerless. Her claims are dubious, and possibly incorrect. Her treatment of an endangered animal is reprehensible. However, you posted this to a law site, asking about "reporting it" (to some sort of authority), and tagged it "criminal law". Her behavior is troubling, but I don't see anything that is remotely illegal or criminal. | The relevant conventions tried to discourage the traditional mercenary business model, but they also try to avoid loopholes in their rules. Under command by and authorized by Russia? Yes. Wearing clothing/insignia recognizable at a distance? I don't know, but a big Z would be enough. Carrying arms openly? I presume so. There is no requirement that armed forces use only their own nationals (see the French Foreign Legion). While Russia tries to deny being "at war," under international law it is, and residents of the unoccupied part of Russia may rally around the flag. We don't know what will happen after the war. There is the precedent of the SS, which was declared a criminal organization at Nuremberg (that is, membership was considered evidence of complicity in their crimes). | In the US, the most wide-spread proscription against a medical treatment (broadly construed) is that only 10 of 50 states allow physician-assisted suicide. In Washington v. Glucksberg (one of the states that subsequently made such suicides legal), SCOTUS affirms that such a law does not violate the Due Process Clause. Given a historical analysis, the court concludes that an "asserted 'right' to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause". O'Connor in her concurring opinion further states that "There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths", but this falls short of a ruling that a person has a protected liberty interest in seeking medical care. Cruzan v. Director affirms that "[a] competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment" (also noting that "informed consent" may derive from common law or specific state constitutions). Reciting prior reasoning on Due Process and medical treatment and referring to Jacobson v. Massachusetts (smallpox case), they note that "the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease". There seems to be a dearth of cases affirming a protected liberty interest in seeking a particular medical procedure. Were the court to announce a fundamental right to seek some medical treatment, that right could still be subordinated to the states compelling interest in preventing some harm associated with a medical procedure, with legal review being carried out under a strict scrutiny standard. It should be borne in mind that Congress does limit access to drugs and devices, hence there is no constitutionally-protected right to take LSD as a treatment for mental problems. To the extent that a procedure relies on a (not-yet approved) device, that device must be approved by the FDA. | Space Force appears to have been specifically included on Dec 27, 2021. "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both." Public Law 117-81, Sec. 1045 https://www.law.cornell.edu/uscode/text/18/1385 | The case you identify is not unique. For example, the Unitarian church in Denver has done much the same thing. There is not a legal right to sanctuary in a church. But, as a manner of law enforcement discretion and public relations and customary traditions of law enforcement respect for churches that long predate the formation of the USA, law enforcement routinely acts as if there was a right to sanctuary in churches (in the absence, for example, of an active shooter situation or a hostage crisis or a kidnapping with a missing victim). I am not aware of any case in which immigration officials have taken push to shove and breached a claim of sanctuary by a church protecting an illegal immigrant in a church. In England, where there was an established church, the established Anglican Church historically did have a right to intervene in certain ways in the criminal justice process (e.g. the "privilege of clergy"). UPDATE (February 21, 2017): My original answer was not entirely correct so I am updating this post. It turns out that in 2011 that Immigrations and Customs Enforcement made what was previously a mere custom into an official policy, something I was not previously aware of. The answer, it turns out, is policy and tradition. A 2011 Immigration and Customs Enforcement policy defines churches, schools and hospitals as "sensitive places" where enforcement actions should be limited. And the tradition of sheltering those who need it goes back to the Middle Ages, said David Poundstone with the Mountain View Friends Meeting. The official policy is set forth here. The policy is in the public domain and given the interest this post has generated I post it in full below: U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have made available Frequently Asked Questions (FAQs) to supplement existing guidance concerning enforcement actions at or focused on sensitive locations and clarify what types of locations are covered by these policies. The ICE and CBP sensitive locations policies, which remain in effect, provide that enforcement actions at sensitive locations should generally be avoided, and require either prior approval from an appropriate supervisory official or exigent circumstances necessitating immediate action. DHS is committed to ensuring that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so without fear or hesitation. Do the Department of Homeland Security's policies concerning enforcement actions at or focused on sensitive locations remain in effect? U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have each issued and implemented policies concerning enforcement actions at or focused on sensitive locations. The ICE Sensitive Locations Policy and the CBP Sensitive Locations Policy remain in effect, and these FAQs are intended to clarify what types of locations are covered by those policies. What do the Department of Homeland Security policies require for enforcement actions to be carried out at sensitive locations? The policies provide that enforcement actions at or focused on sensitive locations such as schools, places of worship, and hospitals should generally be avoided, and that such actions may only take place when (a) prior approval is obtained from an appropriate supervisory official, or (b) there are exigent circumstances necessitating immediate action without supervisor approval. The policies are meant to ensure that ICE and CBP officers and agents exercise sound judgment when enforcing federal law at or focused on sensitive locations, to enhance the public understanding and trust, and to ensure that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so, without fear or hesitation. What does the Department of Homeland Security mean by the term “sensitive location”? Locations covered by these policies would include, but not be limited to: Schools, such as known and licensed daycares, pre-schools and other early learning programs; primary schools; secondary schools; post-secondary schools up to and including colleges and universities; as well as scholastic or education-related activities or events, and school bus stops that are marked and/or known to the officer, during periods when school children are present at the stop; Medical treatment and health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities; Places of worship, such as churches, synagogues, mosques, and temples; Religious or civil ceremonies or observances, such as funerals and weddings; and During public demonstration, such as a march, rally, or parade. What is an enforcement action? An enforcement action covered by this policy is any action taken by ICE or CBP to apprehend, arrest, interview, or search an individual, or to surveil an individual for enforcement purposes. Actions not covered by this policy include activities such as obtaining records, documents, and similar materials from officials or employees, providing notice to officials or employees, serving subpoenas, engaging in Student and Exchange Visitor Program (SEVP) compliance and certification visits, guarding or securing detainees, or participating in official functions or community meetings. Will enforcement actions ever occur at sensitive locations? Enforcement actions may occur at sensitive locations in limited circumstances, but will generally be avoided. ICE or CBP officers and agents may conduct an enforcement action at a sensitive location with prior approval from an appropriate supervisory official, or if the enforcement action involves exigent circumstances. When may an enforcement action be carried out at a sensitive location without prior approval? ICE and CBP officers may carry out an enforcement action at a sensitive location without prior approval from a supervisor in exigent circumstances related to national security, terrorism, or public safety, or where there is an imminent risk of destruction of evidence material to an ongoing criminal case. When proceeding with an enforcement action under exigent circumstances, officers and agents must conduct themselves as discreetly as possible, consistent with officer and public safety, and make every effort to limit the time at or focused on the sensitive location. Are sensitive locations located along the international border also protected? The sensitive locations policy does not apply to operations that are conducted within the immediate vicinity of the international border, including the functional equivalent of the border. However, when situations arise that call for enforcement actions at or near a sensitive location within the immediate vicinity of the international border, including its functional equivalent, agents and officers are expected to exercise sound judgment and common sense while taking appropriate action, consistent with the goals of this policy. Examples of operations within the immediate vicinity of the border are, but are not limited to, searches at ports of entry, activities undertaken where there is reasonable certainty that an individual just crossed the border, circumstances where DHS has maintained surveillance of a subject since crossing the border, and circumstances where DHS is operating in a location that is geographically further from the border but separated from the border by rugged and remote terrain. Are courthouses sensitive locations? Courthouses do not fall under ICE or CBP’s policies concerning enforcement actions at or focused on sensitive locations. Where should I report a DHS enforcement action that I believe may be inconsistent with these policies? There are a number of locations where an individual may lodge a complaint about a particular DHS enforcement action that may have taken place in violation of the sensitive locations policy. You may find information about these locations, and information about how to file a complaint, on the DHS, CBP, or ICE websites. You may contact ICE Enforcement and Removal Operations (ERO) through the Detention Reporting and Information Line at (888)351-4024 or through the ERO information email address at [email protected], also available at https://www.ice.gov/webform/ero-contact-form. The Civil Liberties Division of the ICE Office of Diversity and Civil Rights may be contacted at (202) 732-0092 or [email protected]. You may contact the CBP Information Center to file a complaint or compliment via phone at 1 (877) 227-5511, or submit an email through the website at https://help.cbp.gov. The policy is drafted in a manner that it doesn't actually prohibit enforcement in a sanctuary, even in the absence of exigent circumstances, but it does call for a process to be followed if this is done, and discourages doing so without prohibiting this action. | As with all international law, it depends on "who says so": I will draw on the Geneva Convention Relative to the Protection of Civilian Persons in Time of War as most relevant. Article 3 distinguishes combatants from non-combatants, saying that Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. They then specifically prohibit murder: Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture but this only applies to non-combatants. There simply is no prohibition against killing combatants (unsurprisingly). Liberia acceded to that treaty, so for instance if one of their soldiers murdered a non-combatant, in principle they should try that soldier for the crime of murder under Liberian law. If some random dude (not a soldier) murders anybody in Liberia, in principle they should try him for the crime. Soldier may kill enemy soldier, even when the killed soldier is sleeping and poses no immediate threat to the soldier who kills him. That's the nature of war. In the case of Massaquoi, he might have been prosecuted by Sierra Leone, but negotiated immunity in Sierra Leone in exchange for information on his RUF colleagues. There was no such tribunal or arrangement w.r.t. his involvement in Liberia, and Finland opted to conduct an extraterritorial trial based on war crimes (not the killing of combatants). His acquittal was based on the lack of evidence that it was him that did the reported deeds (I don't know if there is a publicly available judgment, but it is 850 pages and in Finnish, so toivotan onnea projektille. |
Why the German "Agentur für Arbeit" would oficially support companys acting against German law? In the comments1 to this answer: Badly designed reimbursement form. What does that say about the company? I had yesterday an discussion where another user claimed by §670 BGB companys are in Germany legally required to reimburse any justified expenses the interviewee had to participate the interview. If this is not what §670 BGB says and the claim is wrong, that would answer my question, too. But for this post I first assume that it is true. So given that, I am wondering, why the german "Agentur für Arbeit" (which is an government organization AFAIK) has the following procedure, I went trhoguh multiple times (This happened exclusively with small companys, where I could understand they might try to get around additional expanses, tho): I applied for a position and got an invite for an job interview (No mention of reimbursement in any way) I forwarded the invite via email to the "Agentur für Arbeit" what is an requirement for them reimbursing me my expenses I had the interviews, and handed my proofs of expanses to the "Agentur für Arbeit" They requested me to hand them a written statement of the company that the company is not going to reimburse me any expenses. The company usually had already such a writing prepared and just sent it to me. The "Agentur für Arbeit" reimburse my expenses So my question is: Why would the "Agentur für Arbeit" openly support this behavior and why the companys are willing to hand out without hesitation such a written statement, if it was contradicting with the requirement by §670 BGB? 1 Comment transcript: Also companies are legally required to reimburse travelexpenses for interviews in Germany. – Nacorid @Nacorid: Definitely they are not! When I was supported by a social agency in Germany every time I wanted them (the agency) to reimburse my travel expanses, I had to hand in a written statement of the company that interviewed me, that they are not reimbursing any expanses I had. If they were legally required to, this whole process would be a farce. The only reason why most company's do it anyways, is cause they can hand in this reimbursement for their taxes. But they don't have to. – Zaibis @Zaibis §670 BGB clearly states that they are required to if they invite you for an interview, even if you do not get or accept any job offer – Nacorid Unless they clearly communicated, in writing for their safety, before the interview took place, that they are not going to reimburse travelexpenses – Nacorid @Nacorid: But can we actually consider an job interview being a contract? As I understand §670 BGB refering to actions been taken within a contract. Not a lawyer, tho. – Zaibis @Zaibis Not a lawyer either, however I’m not sure that contract would be an appropriate translation, since the law is talking about “Auftrag” which in the case of an interview would be the interviewee (“Beauftragter”) traveling to (“Auftrag”) the interviewer (“Auftraggeber”) for the interview (“Auftrag”). There have been numerous cases of denying reimbursement which were almost all ruled in favor of the candidate as long as the travel costs were reasonable. By which they for example mean “not a 1. class plane/train ticket for the role of a project manager” – Nacorid @Nacorid: In that case I still wonder, why the "Agentur für Arbeit" is willing to reimburse, for the company, as long, as you get a written (after requesting it) statement of the company, that they aren't willing to pay the travel expanses, given they were required by law to do so. That would mean, I got last year by at least 5 company's a written statement in which they confirmed, they don't respect German law. That sounds weird to me. – Zaibis @Zaibis That is because it is perfectly legal to declare beforehand that there will be no reimbursement and there might also be legal intricacies about “Arbeitslose” which I am not aware of – Nacorid @Nacorid I didnt say it was beforehand: The process was in at least 5 cases as following: I got an invite for an interview after applying (no mentioning of travel expanses) I accepted, informed the agency about the invite by forwarding the email. I had the interview, asked the agency for reimbursment and they asked me to provide a written statement by the company that they are not gonna reimburse me. I understand why the company would try getting around such a law. But not why a governor organisation would support the companys with it. Know what? I am gonna ask about this tomorrow on lawSE :) – Zaibis | What §670 BGB basically says is that the default is that companies have to reimburse you for expenses that you incurred for interviewing with them. If they don't want to reimburse you, they have to tell you so in writing before you incur any costs. That way it's your decision if you still want to go if you have to pay for expenses yourself. It does not mean your expenses have to be paid, it means you should know beforehand whether they will be paid. So what I take from your story is that you never actually asked the company for reimbursement, expecting the Agentur für Arbeit to pay that for you. Well, no company is going to pay your expenses if you don't ask for it. And that's not a crime. You also never told the Agentur für Arbeit that you were not informed beforehand that your expenses would not be paid. They asked for proof, you delivered proof. It's not their job to find out how or when you got handed this written statement and if that constitutes a violation of §670. And as a little reality check: paying your expenses (probably something along the lines of a cab fare or bus ticket?) is way more cost effective for the AA than suing a small company for the same amount. Just the time of the lawyer filing the suit will probably cost more than your public transportation ticket for the next year. | Some kinds of companies (e.g. freight shipping companies and banks) often do have those policies. The real issue is not whether those policies are permitted, but what the consequences are for breaking them. The fact that a company forbids its employees from exercising a legal right doesn't mean that the employee ceases to have that legal right. It simply means that if the employee exercises that legal right, then the employee has breached the contract and may suffer the consequences for breaching that contract. Violations of those policies are grounds for termination from employment, and this would probably not be void as a matter of public policy. For an employee at will this is really pretty meaningless, although it could conceivably affect unemployment benefit eligibility. But, for a unionized or civil service employee who can only be fired for cause, this is a big deal. But, in theory, a company policy does not impact the tort liability or the criminal liability of the individual engaging in legally privileged self-defense to anyone. This is because two people can't contractually change their legal duties to third parties with whom they are not in privity (i.e. with whom they do not have a contractual relationship). And two people also can't contractually change the terms of a country's penal laws. The policy may be a defense of the company from vicarious liability for the employee's use of force in violation of the policy that gives rise to civil liability for the employee because the grounds for authorizing self-defense were not present. If the employee using force did so wrongfully and was sued for negligence rather than battery, the existence of the company policy might also go to the issue of whether the employee was acting negligently since a reasonable person in the employee's shoes might have been less likely to wrongfully use force in purported self-defense if there was such a policy than if there was not such a policy (and instead there might arguably have been a legal fiduciary duty as an agent to protect the property and workers of the principal in the absence of the policy). | what taxes or fees does he need to pay? According to this glimpse of Austrian tax law, Franz would still have to pay income tax on any non-monetary compensation he gets from the company. See section of "Vermietung und Verpachtung [...]". Non-monetary compensation is typically known as benefits. The term serves to distinguish that compensation from (1) any cash flows from the company to Franz, which you ruled out in your description, and (2) any expenses the company incurs for business purposes involving Franz. Your mention that "nor does he take money out of the company in any other way" might mean that you ruled out benefits as well. I just wanted to be safe and preclude any misunderstanding in case you had in mind only cash flows from the company to Franz. | That is a very broad clause, broader than the default US rule for copyright, for example. (I know the question asked about the UK, I just happen to know the US copyright rule.) It would seem on the face of it to include independent research on a subject totally unrelated to the person's employment, done off the company's premises and not during normal work hours, but while the person was an employee.. Indeed it would arguably include the copyright to a novel written off premises and during off hours. Use of "course of employment" (instead of "term") would improve the provision. so would "as a part of his or her employment" or "closely related to the subject of his or her employment". Another possible restriction would be "Using the Company's facilities and/or equipment, or during normal working hours". However, my experience is that an employer will have drafted whatever language it uses through its company lawyer, and will be quite unwilling to alter it in any way. A prospective employee will probably be faced with a take-it-or-leave-it choice unless that person is a nearly indispensable figure to the company. One could send the company a certified letter saying, "When i signed the contract agreeing to {company language} I did not intend to include any developments made off company premises, not using company equipment, and unrelated to the subject or scope of my employment. I retain full rights to any such developments." Such a letter would help establish that there was no meeting of the minds to assign such non-employment-related developments or IP to the Company. How much weight it would have if the rights to such developments were the subject of a court case I am not sure. | I find that Petri Mäntysaari: The Law of Corporate Finance: General Principles and EU Law: Volume II, p. 115-140 can pretty much explain the reasoning for this. It is in chapter 5.3 on Terms non-binding as intended. The contract might not contain all legal requirements for some reason, or a clause might become invalid due to law changes. Sometimes the contract becomes unenforceable for some reason or another in part or full. The salvatorian clause is there to fix the defective clause to become the closest estimate to the written form that is legal and not deficient instead of being just dropped from the contract. This can save a contract from becoming unenforceable or making it void in whole. Especially look at Page 140: If a contract term is invalid because of a mandatory provision of law, it will be replaced by legal background rules(§306(2) BGB). One of the standard ways to address the situation is to use a so-called salvatorian clause. [...] This [reinterpretation/fixing of deficiencies] would not happen without a specific contract term. (See §139 BGB. On the other hand see also §140 BGB. Compare DCFR II.-7:302 and II.-7:303) A caveat though: if the alteration to the clause needed is too big and substantial, the contract as a whole can become void and null, no matter what the salvatorian clause said. It cannot overcome some burdens and there are regularly courts (I know this for Germany) voiding contracts due to such serious deficiencies. Notes BGB is the German "Bürgerliche Gesetzbuch", an english translation exists §139 says "If a part of a legal transaction is void, then the entire legal transaction is void, unless it is to be assumed that it would have been undertaken even without the void part." Example: a sale lacking any payment is not a sale (which starts a legally required warranty) $140 says "If a void legal transaction fulfils the requirements of another legal transaction, then the latter is deemed to have been entered into, if it may be assumed that its validity would be intended if there were knowledge of the invalidity." Example: a sale lacking any payment can be interpreted as a gift if the intent was to do so (and does not grant warranty) DCFR is the EU Draft Common Frame of Reference, so the above rules are to be found in the document as follows II.–7:302: Contracts infringing mandatory rules - p. 565. Paraphrased: "if a clause in a contract violates a law, substitute the law for it, courts shall decide if that alters or voids the contract. They may fix contracts to cure them." II.–7:303: Effects of nullity or avoidance - p. 574. Paraphrased: "void contract (parts) can constitute unjustified enrichment, transfer of items might not have happened, courts may fix contracts to cure." From the DCFR document one can read what happens in absence of a Salvatorian clause, especially for UK law. II.–7:302: I. Contracts contrary to law 1 All European systems deal with contracts which contravene some rule of law, as opposed to contracts which are contrary to fundamental principles of morality or public policy. 5 In ENGLISH, IRISH and SCOTTISH law the standard texts all include chapter headings such as “Illegality”, or “Statutory Invalidity”. See further Enonchong, McBryde, Law of Contract in Scotland1 , paras. 19.28-19.36, and, for the confused development of Scottish law, Macgregor in Reid & Zimmermann vol. II, chap. 5. II. Effects of infringement 8 The general starting point in most European legal systems is that contracts violating legal rules are void. There is often, however, considerable flexibility in the law. 14 In ENGLISH and SCOTTISH law, while an illegal contract may be void, it is more often presented as “unenforceable”, in that neither specific performance nor damages are available to the parties. Thus a party may withdraw from an illegal contract with impunity. Courts will take notice of illegality of their own motion and dismiss actions accordingly (Chitty on Contracts I27, no. 16-199; MacQueen and Thomson, Contract Law in Scotland, § 7.15; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.17-19.27).). Again, however, there is flexibility in the law on contracts infringing statutory provisions. There are several cases in which the courts have considered whether giving effect to the statute requires the nullity of the contract as a supporting sanction (see e.g. St John Shipping Corp. v. Joseph Rank Ltd. [1957] 1 QB 267; Archbolds (Freightage) Ltd. v. S Spangletts Ltd. [1961] 2 QB 374, CA). English law is currently under review by the Law Commission: see its Consultation Paper on Illegal Transactions. The Commission’s provisional proposals were to the effect that courts should have the discretion to decide whether or not illegality should act as a defence to a claim for contractual enforcement. But the discretion should be structured by requiring the court to take account of specific factors: (1) the seriousness of the illegality involved; (2) the knowledge and intention of the party seeking enforcement; (3) whether denying relief will act as a deterrent; (4) whether denial of relief will further the purpose of the rule rendering the contract illegal; and (5) whether denying relief is proportionate to the illegality involved. II.–7:303: Notes 5 In ENGLISH law the general rule is against restitution but it is possible in exceptional cases where the claimant is not in pari delicto with the recipient, or the transaction has not been completely executed, or if the claim can be formulated without reference to the prohibited contract (Treitel, The Law of Contract9 , 490-504). IRISH law is similar (Clark 314-19), and so is SCOTTISH law (Stair Memorial Encyclopaedia vol. 15, paras. 764-765), although in one Scottish case where, by statute, contracts using old Scottish measures were void, restitutionary recovery was allowed in respect of a sale of potatoes by the Scottish acre, on the ground that there was no moral turpitude in such a transaction (Cuthbertson v. Lowes (1870) 8 M 1073; see further Macgregor, (2000) 4 ELR 19-45; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.22-19.26). The English Law Commission in its Consultation Paper on Illegal Transactions suggested that a court should have discretion to decide whether or not illegality should be recognised as a defence to a claim for restitution, various factors being taken into account. In addition the court should have a discretion to allow a party to withdraw from an illegal contract and to have restitution where this will reduce the likelihood of the completion of an illegal act or purpose, although it must be satisfied that the contract could not be enforced against the claimant, that there is genuine repentance of the illegality, and that it is not too serious. | Would this be legal? Probably at this scale. Not necessarily extrapolated to a large commercial operation involving more parties. At some point it becomes a payment system and a financial enterprise that becomes subject to financial regulation. Could her transfer be viewed as a donation as well? This is not a donation transaction and efforts to characterize it in that fashion would probably be disregarded by authorities. Could they be viewed as money laundering? The core element of money laundering is an effort to conceal the source of the funds for some purpose. It isn't clear if that would or would not be a motive. Other considerations A fairly common way to handle this kind of situation that is similar to what you suggest is called correspondent banking. Each side has an account in Russia and an account in Germany. Most day to day transfers happen by directing that money go from one German account to another German account, or from one Russian account to another Russian account. The big benefit of correspondent banking, aside from being transparent, is that it avoids currency exchange risks, fees and considerations for small, ordinary transactions. Of course, it simply isn't difficult or expensive to simply wire money from Russia to Germany, and vice versa, now and then. There are not strict currency controls, although there are some potential disclosure requirements. One reason for you, or authorities to worry about characterization of the transactions as money laundering is that if you have nothing to hide, simple wire transfers would be the usual and ordinary way of handling matters. | Normally the statute of limitations is five or six years (I think it's different between Scotland and the rest of the UK). The reason for the limitation is that if your employer asks for money back, you obviously should be able to defend yourself, for example by proving that you never received that money. After five or six years it is assumed that you wouldn't be able to provide any such evidence, so nobody can ask for the money back anymore. That's not specific to overpaid wages but quite general. In addition there is the question whether the pilots should have known they were overpaid. For example, I'm quite happy with my salary, but if it was less, I would look for and find a different job that pays better. If the company claimed in five years time that I had been overpaid all the time, then I would say that if they had given me the "correct" lower payment, I would have found a better job elsewhere, so asking me to repay the money seems quite unfair. (Why do you need to defend yourself? Maybe your salary was £3,000 per month. Someone in the right position records that they are paying you £4,000 but puts £3,000 into your account and £1,000 into their own. Then that person has an accident and their replacement finds that you were overpaid according to their records.) | This is an open question. California's Unruh Act prohibits discrimination in public accommodations on the basis of political affiliation. This same issue has come up previously, in a case where four neo-Nazis showed up wearing swastika pins at a German restaurant. When they refused to remove the pins, the restaurant called the police to remove them. The Nazis sued the restaurant under the Unruh Act, which prohibits various forms of discrimination in public accommodations (restaurants, hotels, etc.) Although the Unruh Act does not specifically mention discrimination on the basis of political ideology, the California Supreme Court has interpreted its list of classes as describing, not limiting, the classes eligible for protection, which it has also explicitly said include political affiliation: Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination. Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721, 726 (1982). Based on these interpretations, the trial court refused to dismiss the Nazis' case against the restaurant, and the parties eventually settled without going to trial. Read commentary about the case here. So it seems clear that the Unruh Act prohibits discrimination on the basis of political affiliation. Because wearing a swastika indicates that you affiliate with the National Socialist German Workers' Party or one of its offshoots, the Unruh Act probably prohibits a business from discriminating against customers on the basis of wearing a swastika. But federal law may pre-empt the Unruh Act. But the problem doesn't end there, because intepreting the law that was creates potential conflicts with federal public-accommodations law, employment law, and the First Amendment. For instance, federal law prohibits the creation of a "hostile environment" in terms of both providing public accommodations on equal terms regardless of race, and in terms of equal employment opportunity regardless of race, color, religion, sex or national origin. Proving a hostile environment can be pretty difficult, but if you could demonstrate that allowing swastikas on premises created a hostile environment for customers or employees, you'd then have a strong Supremacy Clause argument that the Unruh Act can't be enforced to require the admission of swastika-wearing customers. Beyond that, businesses have First Amendment rights on generally the same terms as natural humans. There's a reasonable argument to be made that those businesses, in banning swastikas, are communicating a First Amendment-protected anti-Nazi message, or that they are exercising their right to control who speaks in the forum that they control. If the court were to accept either of those arguments, it would again mean that the Unruh Act probably could not be enforced to benefit those wearing swastikas. |
What can a person legally publicly share about his previous employer? I am writing a blog and often use some examples from my past (previous companies where I was working). All of the examples are trivial (no financial info, no customer info, no know-how, and so on). And most of these events happened A LOT of time ago. So, as a result, I am pretty sure nobody cares. However, one of my friends asked me, "Is it ok (from a legal perspective) what you are doing?" and I got curious about that. Are there laws that govern something like that, or is it purely per employment agreement (and other agreements) signed during employment? Is there any statute of limitations overriding such agreements? | Defamation Defamation (also known as calumny, vilification, libel, slander, or traducement) is the oral or written communication of a false statement about another that unjustly harms their reputation and usually constitutes a tort or crime. In several countries, including South Korea, a true statement can also be considered defamation. Under common law, to constitute defamation, a claim must generally be false and must have been made to someone other than the person defamed. So, to protect yourself, don't say things that could harm the ex-employer's reputation, or, if you do, be sure you can prove that what you said is objectively true or obviously a statement of personal opinion. "Joe is a a dickhead" is a statement of opinion and not defamatory. If you say "Joe is a thief", you better be able to produce the record of his conviction for larceny. Non-disparagement clauses If your contract with an ex-employer with such a clause then you must abide by it. This will limit what you can say about the ex-employer as spelled out in the contract - it may be you can't say anything negative but it may also be that you can't say anything at all. Breach of confidence Legally enforceable obligations to maintain confidence may arise in contract and equity. A contractual obligation of confidence can arise from express terms in a contract, but also by implication. An equitable obligation of confidence can arise where the formalities for the formation of a contract are not present. The obligation arises where information with the necessary quality of confidence is imparted in circumstances importing an obligation of confidence. Such circumstances will exist where the information is imparted on the understanding that it is to be treated by the confidant on a limited basis, or where the confidant ought to have realised that in all the circumstances the information was to be treated in such a way. Breach of the obligation occurs where there is an unauthorised use, not only where there is unauthorised disclosure, of the information. Fiduciary duties Depending on your role with the ex-employer, you may retain fiduciary duties that continue beyond the end of your relationship. Ex-directors certainly have such duties but sufficiently tightly placed non-director executives (C suite level) may also have these. | Some kinds of companies (e.g. freight shipping companies and banks) often do have those policies. The real issue is not whether those policies are permitted, but what the consequences are for breaking them. The fact that a company forbids its employees from exercising a legal right doesn't mean that the employee ceases to have that legal right. It simply means that if the employee exercises that legal right, then the employee has breached the contract and may suffer the consequences for breaching that contract. Violations of those policies are grounds for termination from employment, and this would probably not be void as a matter of public policy. For an employee at will this is really pretty meaningless, although it could conceivably affect unemployment benefit eligibility. But, for a unionized or civil service employee who can only be fired for cause, this is a big deal. But, in theory, a company policy does not impact the tort liability or the criminal liability of the individual engaging in legally privileged self-defense to anyone. This is because two people can't contractually change their legal duties to third parties with whom they are not in privity (i.e. with whom they do not have a contractual relationship). And two people also can't contractually change the terms of a country's penal laws. The policy may be a defense of the company from vicarious liability for the employee's use of force in violation of the policy that gives rise to civil liability for the employee because the grounds for authorizing self-defense were not present. If the employee using force did so wrongfully and was sued for negligence rather than battery, the existence of the company policy might also go to the issue of whether the employee was acting negligently since a reasonable person in the employee's shoes might have been less likely to wrongfully use force in purported self-defense if there was such a policy than if there was not such a policy (and instead there might arguably have been a legal fiduciary duty as an agent to protect the property and workers of the principal in the absence of the policy). | Links are in French. As the author of a work, you would generally hold copyright unless there's a contract otherwise. L113 of the Code de la propriété intellectuelle determines who is the rights holder of a given work and I don't see anything there that changes things for you as a contractor. Even if you assigned some rights to your employer through a contract, France has moral rights which can never be ceded. In fact, even if you were a salaried employee, you still hold the rights by default, unlike the US. There are a few exceptions to that though: software, inseparable joint works, and works where the creative process was purely directed by your superiors. | "Wholly unconnected with your employment" means exactly that. Anything that is not connected to your functions or processes that you use in the course of your employment that your employer would have an interest in either protecting or marketing. Writing a book about software development If you are just a software developer, this would be fine unless you were talking about a process unique to your employer. If you worked in a publishing house that wrote software development books, this would be connected and must be disclosed to your employer. Releasing an open source piece of software not specifically aimed at the industry the company is in Again, this probably fine not to disclose since it would not be something you would develop as part of your employment, or under the umbrella of your company focus market. Release a commercial piece of software not specifically aimed at or competing with the industry the company is in Same as above. Honestly though the best policy is being open. If you come to your company with your idea and tell them that it doesn't have any applications in your industry and would like to develop it in your own time, they would have a much harder leg to stand on in a court case when they finally figured out how to apply it. | No. Absent some collective bargaining agreement to the contrary, you have no recourse because you have not been legally wronged. You have no right to privacy in this regard. You have no right to be free of humiliation based upon truthful statements. If the email is truthful and you were indeed suspended, then the manager is entirely appropriate in sharing that information, and indeed has a need to do so. You would have no recourse in Tennessee, even if your manager gave a national television interview on your suspension and truthfully stated all reasons for the suspension and threw in statements of opinion disparaging you. Humiliation is only actionable if it amounts to "outrageous conduct" beyond mere truthful speech (e.g. throwing your clothes in the toilet or secretly putting some self-disparaging statement on the back of your uniform) and was calculated with a specific intent to cause you extraordinary emotional harm that was not necessary for some legitimate purpose. | 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. | 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. | IANAL, and as @GeorgeBailey suggests, you should ask one. That said, some aspects of your question are directly addressable with what we know. Does US law states anything about this? Yes. Federally this falls under the Wiretap Act, 18 U.S.C. §2511. Workplace monitoring generally falls under either the "System Administrator Exception" or under Consent. In general, continuing past a banner constitutes consent. Does company policy enforcement with such a warning over ride the right to not be subject to surveillance? In general, yes. You don't need to use the companies network if you don't want to consent - and they don't need to hire you if you don't want to use their network. But it's their network, and their rules apply. There are some nuances, and courts have found that the wording of the notice has made a difference in some cases, but overall, if the systems are properly posted with banners, then the employer may capture communications. See the "Bannering and Consent" section of this article from cybertelecom.org, e.g.: Even if no clicking is required, a user who sees the banner before logging on to the network has received notice of the monitoring. By using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). Note that stored data is covered by different laws than communications. It's a nuance. Is it ethical to sniff all the data without giving any other warning than the logon banner? "Ethical" is a very different question than "Legal", and largely more subjective. Most employers require signed consent for monitoring as a condition of employment, and use banners thereafter. That is ethical by my definition, in that it meets or exceeds the requirements of the law, and does not mislead or use subterfuge. The tone of your question suggests you find it distasteful, and therefore probably it violates your personal code of ethics. |
How did the UK change its name? This is a question about the legal process of a state changing its name (not about why it changed its name). In 1927 the Parliament of the United Kingdom of Great Britain and Ireland changed its name to the Parliament of the United Kingdon of Great Britain and Northern Ireland. It did this by passing the Royal and Parliamentary Titles Act 1927. Section 1 of that Act also authorised the King to change his title by proclamation but it was understood (see Hansard) that he would not use the words United Kingdom in his title which became George V. by the Grace of God of Great Britain, Ireland and the British Dominions beyond the Seas, King, Defender of the Faith, Emperor of India Subsequent British monarchs used a similar title and it was not until 1953 that the Queen changed her title to: Elizabeth II. By the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith so that her title contained United Kingdom of Great Britain and Northern Ireland Before 1953 sometimes treaties were entered into in the name of Great Britain and Northern Ireland (example) sometimes in the name of the United Kingdom of Great Britain and Northern Ireland (example) but as far as I can see United Kingdom of Great Britain and Northern Ireland is used consistently after 1953. So my question is by what means and when did the title of the country itself change to United Kingdom of Great Britain and Northern Ireland? Was it a precise event or did the country gradually come to be called that by frequently using that name in international relations? | The change in the royal title came about following the Imperial Conference of 1926, when the various governments of the Empire agreed that "the group of self-governing communities composed of Great Britain and the Dominions" were "autonomous Communities ... equal in status". The Conference declined to pursue developing any kind of Imperial Constitution, preferring instead to draw out a few specific consequences of that agreement. In the Balfour Declaration, section IV(a) asks for legislation to change the King's title. There is also a longer discussion in V(a) about treaties, which affects the examples that you give in the question. Both of your 1930 examples follow the recommendations in this Declaration. The convention on conflict of nationality laws is entered into by the King, with the governments of his realms separately represented and enumerated. It lists two plenipotentiaries "For Great Britain and Northern Ireland". The omission of "the United Kingdom of" is not material, much like talking about "the Kingdom of Sweden" versus just "Sweden". The agreement on Bulgarian financial obligations is between the Government of the United Kingdom of Great Britain and Northern Ireland, and various other governments. They both refer to Northern Ireland rather than Ireland but differ in form because they use the different structures of a treaty between sovereigns and an agreement between governments. As noted in the Declaration, prior usage was not always obvious to interpret, because of confusion about whether (say) Canada was meant to be bound by a treaty entered into in the name of the King of Great Britain. Likewise, R v. Jameson [1896] 2 QB 425 is an important case on extent of legislation to British possessions - in the past, it was not always explicit whether an Act was for the UK only, and this had to be deduced from context. In debate on the 1927 Act in the Commons, the Home Secretary Sir William Joynson-Hicks (as he then was) said: It is clear that it is a misnomer to continue to talk of "The United Kingdom of Great Britain and Ireland." Quite obviously, since Southern Ireland has been granted Dominion Home Rule, there is no such thing as "The United Kingdom of Great Britain and Ireland," but there is still "The United Kingdom of Great Britain and Northern Ireland." Consequently, after full consultation and interviews with the representatives of Northern Ireland, with the Government of Northern Ireland, it has been decided to ask the House to alter the title of Parliament- and to make it "The Parliament of the United Kingdom of Great Britain and Northern Ireland." and: Certain portions of Ireland have, as it were, slipped out of the United Kingdom, and we now call it the United Kingdom of Great Britain and Northern Ireland, but it is still the United Kingdom, and this is still the Thirty-fourth Parliament of the United Kingdom. It is clear that he - on behalf of the government - saw the Act as sufficient to change anything already defined in statute which needed to be changed. (It was also debated whether the Great Seal needed to be renamed as well, etc.) The change to the name of the country did not need statutory authorization in contexts where the old name was not required by statute. Diplomatic formulae are not statutory and so aren't mentioned here; the royal prerogative is already enough for the treaty language to be as envisaged going forward. British passports also changed in 1927 to using "United Kingdom of Great Britain and Northern Ireland" in place of "and Ireland". At the time, passport issuing was entirely on the basis of the royal prerogative, without any legislative regime. Various other official publications, like statistical reports, used the new name going forward. Some other provisions in the Declaration were given effect in the Statute of Westminster 1931. This should be seen as part of a continuing effort to let the legal situation follow the policy (Commonwealth nations are equal autonomous peers) which itself followed the facts on the ground (the UK government could no longer expect to rule them directly). So there was not precisely a "flag day" when the UK's name changed, but there was a process of recognizing that the name ought to change, some wrangling over how, and the fairly rapid implementation of the change in 1927, at least on the part of the UK government itself. | You can see the whole regulations on www.legislation.gov.uk. It is a referendum. There does not need to be a "winner". A referendum is meant to understand what the general populace wants. And "they are split exactly 50/50 between X and Y" is a valid result in that frame. The point that made this referendum special was that the ruling party had promised, that they would actually do what the referendums outcome would suggest, even if they were not legally bound by it and were not even in favor of it as a political party. So what the ruling party would have done when confronted by an absolute exact tie (not only percentages, but actual votes) is anybodies guess. I don't think anybody had a backup plan for what happens if the 33,577,342 votes came out exactly 16,788,671 to 16,788,671. The chance of that... was not real. You prepare for that about as much as for an alien invasion on election day. | Why do other countries, like America, not allow this? It is the way that U.S. courts have interpreted the constitutional amendment requirement and reflects a policy judgment that letting someone go free now and then is better than frequently forcing someone to be tried more than once. That value judgment flowed from concerns about and fear and skepticism of the British colonial criminal justice system and the Star Chamber in England with which they were familiar. The U.K., Australia, Canada, and New Zealand didn't have an independence revolution in their history to create the same kind of deep distrust of authority, especially in the criminal justice area. The U.S. was founded by terrorists. Few other former British colonies were. Quoting Dale: "As a constitutional protection, legislative change like this is not available in the United States." Is that really true and can someone expand on this? When the courts determine that the constitution requires something it can't be changed with ordinary legislation. Either the constitution needs to be amended to change it (which is very hard), or the courts can change their interpretation (which is unlikely in an area so settled in the law and which is relatively uncontroversial between liberals and conservatives in the U.S.). If it is, this is a big problem in my opinion. The powers that be in the U.S. don't agree. This kind of case is exceedingly rare. And, there are much bigger problems with the system that obscure that one. Also, the dual sovereignty doctrine allows federal prosecutions in some wrongful acquittals that really matter (e.g. for civil rights violations by law enforcement). | Article 41.3.3 of the 1937 Irish Constitution said: No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved. Until this section was changed by the 2019 amendment. I can find no source to show how "but is a subsisting valid marriage under the law" was interpreted, but it seems that a person divorced in or prior to 1940 under US law would not have been permitted to marry in Ireland after 1937 until 2019 under this provision. It should be noted that although Finnegans Wake by James Joyce was published in full in 1939, much of it had been written and published in sections by 1926. It is not at all clear just when it is set. In the 1920s, the constitutional provision quoted above was not yet in effect. | It's hard to know why people choose the venues they choose. But, the UK is known for having very plaintiff-friendly libel law (although less-so now). Libel tourism was much more feasible in 1996, when David Irving brought his suit. But, as of 2014, "claimants wanting to sue defendants who do not live in Europe will have to prove that England is the most appropriate place for the case." (New Law Makes Suing for Libel Harder in England) Further, in the U.S., the SPEECH Act of 2010 makes foreign libel judgements unenforceable in the U.S. unless the defendant would have been found liable even under U.S. Law. | "Why" someone did something is potentially off-topic, but in regards to your hierarchical image - it lacks provenance so cannot be tested, however according to the official judiciary website: The Master of the Rolls is second in judicial importance to the Lord Chief Justice. | This question on Quora says, Although the title is now one of status and prestige without any expectation that the appointee will actually act as counsel to Her Majesty, the appointment still appears to be referred to as an “office” (see Vote Bundle Text (990511-06)). If regarded as an “office”, then the appointment of QC/KC would not be affected by the demise of the Crown. This is because the Demise of the Crown Act 1901 dispenses with the need for the fresh appointment of any office upon the demise of the Crown. So no new letters patent would have to be issued. and Take for example Sir Robert McCall, pictured below, who took silk in 1891, under the reign of Queen Victoria – thus making him a QC. Subsequently, when Victoria’s reign ended, he became a King’s Counsel, adopting the postnominals KC. There seems to be no record of a new letters patent being issued. This question on Quora says, Kings Counsel all immediately became QCs when Queen Elizabeth became Queen. and notes one exception By default, when the gender of the monarch changes, EVERY past reference to Queen becomes King at once, or King to Queen as appropriate. Her Majesty the Queen ordered that the King’s Troop Royal Horse Artillery should continue to be called the King’s Troop in memory of her father. This article relates to the death of King George VI and is probably the best authentic account available if what actually happened: In London’s High Court, King’s Counselor Harold Shepherd had just finished cross-examining a defendant when the news came. The court adjourned. Ten minutes later, the lawyer resumed the floor as Queen’s Counselor. Painters at another London court set to work painting out the sign “King’s Bench” and replacing it with “Queen’s Bench.” | 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. |
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