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Can a landlord fine me for a non-existent business being listed at my address on Google Maps Backstory: When I moved into my rented house, I setup a personal bar and had a house warming party where we named the bar. As part of the celebration, it was listed on Google Maps as a business. To clarify, it was not and is not an actual business, it was set up as a joke amongst friends. Issue: I was recently contacted by my landlord claiming that I was running a business out of the house and that it violated the HOA agreement, citing the aforementioned google listing. They have threatened to fine me for running a business out of my house, which I am not, and also have asked to prove that I'm not, which seems impossible as it would be trying to prove a negative. I showed them that there is no official listing on any official website of me running a business out of this house or with me listed as the owner of any business. They then followed up and said that the listing had to be removed from Google or else the violation would stand. Question: Do they actually have any say or grounds for the claims that they are making? | The legal position You are quite clearly not running a business and if the matter went to court you could easily prove this be e.g. getting testimony from the people at the party, your testimony etc. In any event, your landlord can’t “fine” you. Fines are a punishment and only government can punish people. They can sue you for breach of contract for damages (which are restitution not punishment) or to seek specific performance. The practical position Take the listing down. Rightly or wrongly, it's souring your relationship with your landlord and their relationship with their HOA. Is having this mildly amusing joke worth damaging these relationships, particularly if you might want to renew your lease? The landlord might feel that they are better off with a tenant who doesn't cause them grief with their HOA. Even if your landlord understands, the HOA might not. If they sue your landlord, they will have very little choice but to join you. Yes, you will almost certainly win your day in court but you will not get reimbursed for the time and effort you had to go to. this includes taking the day off work, subpoenaing all your friends to give testimony etc. Who has time for that crap? Further, whenever you go in front of judge or arbitrator who has the power to force a resolution of your dispute, you are rolling the dice. Sure, you may think you have great evidence and the other sides' is completely bogus but if they present theirs with skill and confidence and you screw yours up then they can walk away with a win. Real court cases depend on who the judge believes. If they believe your landlord's reasonable story about running an illegal bar and they don't believe your crazy tale of it all being a joke - you lose. Remember: free speech can't be restricted but it does have consequences. Further, anyone who bases relationships on legal rights and responsibilities is going to have very shallow relationships. | A "limited license housing agreement" may be an interesting attempt to get around landlord-tenant laws, typically associated with official student housing (e.g. this from Queens College CUNY). This facility near WMU is not overtly related to the university, but might be subcontracting for the university. At any rate, there is no special provision under Michigan law that exempts landlords from the provisions of the law in case they declare the contract to be an agreement as opposed to a lease. It is possible that this is copy-and-paste law that erroneously relies on provisions in landlord-tenant laws that exempt university housing agreements from provisions of a state's landlord-tenancy law. You do not need to be informed that you should / could consult an attorney before signing a legal document: this knowledge is presupposed. It is also assumed that when you sign a document, you read the document. It is reasonably likely that the lease contained language like the following (from the above contract): I have carefully read, fully understand and voluntarily sign this Housing Agreement. Once fully signed, this is a binding contract and is intended to be enforceable under its terms. I have had the opportunity to seek independent legal advice The disclaimer "This Housing Agreement is not a lease and no tenancy, leasehold, possessory or other property interest in any specific apartment or bedroom is created" has dubious legal status. The rights given by the landlord-tenant act cannot be waived, under the Truth in Renting Act, so saying "this is not a lease" does not make the lease not a lease. In Michigan there is a duty on landlords to mitigate loses when a premise is abandoned. The case Fox v. Roethlisberger, 85 N.W.2d 73 mentions such a possible duty in the context of tenancy is often cited on the web as establishing such a duty, but I disagree. Froling v. Bischoff, 252 N.W.2d 832 however establishes that there is such a general duty for any breach of contract (and even applies it to breach of a rental agreement). So whether or not you call it a lease, there is still a duty to mitigate losses. In the scenario where you abandoned the unit and the landlord waited until the end of the year to file an action for breach of contract, they could have failed in their duty to mitigate their losses (but see Fox v. Roethlisberger, where landlord did make an effort to re-rent, and simply was not able to for 9 months). | Very likely. You may own your parking space, but when you bought your condo you also signed a contract agreeing to abide by the rules of the condo association. Condo associations typically have rules that all cars parked on the property must be registered with the association. If you didn't register your friend's car with the association, they have no way of known that it isn't some random person trespassing to score free parking. Some associations may have additional rules limiting parking to residents of the building. Get in touch with your association and find out what the rules are. You should have been given a copy of the association rules when you closed on the purchase of the condo. | Your landlord has an obligation to allow "quiet enjoyment" of the premises. Essentially this means that, unless they are damaging his or her property, the tenants are entited to act as though it were their own property. Many people take drugs at home. Between the tenants and the landlord this is not something the landlord is allowed to get involved in. If you believe there is criminal activity going on, you can but are not obliged to report it to the police. | Firstly, your "apartment" doesn't prohibit anything; Your tenancy contract does. A terminology nitpick, but one that can shed some light on what is actually happening. TLDR: Your right to bear arms isn't being infringed, its being traded away. An unreasonable trade may be invalidated by the courts. Firearms restrictions are far less likely to be voided than speech content limitations. Yes, you have the right to bear arms(whatever exact meaning of that is). You also have the right to voluntarily agree to a binding agreement limiting that right, in exchange for a consideration. Compare a Non-Disclosure Agreement (NDA). You have the right to freedom in your speech: you also have the right to agree to binding limits on your freedom of speech, in return for consideration (such as money or access to information). Every contract is structured in the same general way: Party A agrees to do or avoid doing certain things, in exchange for Party B agreeing to do or avoid doing certain things. So, in essence, what the apartment contract says is, that you agree to do or not do some things (including paying rent), in return for your landlord temporarily granting you some rights(such as the right to reside(generally exclusive), the right to control the space, etc. ), and imposing some obligations on themselves (which vary from place to place). In your case, one of the things that you are trading is a limitation on your right to bear arms(note that you can still bear arms, just not on the property in question). Now one thing to note is that courts have the power to enforce contracts; they also have the power to void contracts, in part or in full, if they are illegal or "unconscionable". In general, restricting (the content of) speech is not reasonable (e.g. having a general noise level restriction is reasonable), so is more likely to be struck down than one restricting firearms on the rented property. | At common law, a tenant is entitled to "quiet enjoyment" of the property. This means that the owner can only interact with the tenant as spelled out in the lease or in an emergency situation. First, calmly and quietly write down a list of your grievances. Then check your lease to see what the landlord is entitled to do. Cross off any grievances that are permitted by the lease. Take this and the lease to your solicitor and pay him to write a letter to your agent advising them of your grievances and asking that they stop. Without knowing where you are, we do not know what additional rights and dispute resolution procedures are available in your jurisdiction. Very few jurisdictions still rely entirely on common law as real estate is one of the most highly government regulated areas of life wherever you are. Your solicitor will know and, for less that a week's rent will give you solid advice. | If that is the licence that Uber are operating under then they are breaking it. This is not legal in that Google can sue them for copyright breach. However, this is the licence that Google offer to the average person on the street for which they pay Google nothing. It is entirely possible that Uber and Google have come to terms on a completely different licence arrangement which may involve Uber handing over slabs of cash (or not) and not needing to attribute. Google is free to offer licences on different terms to different people. | (Converting comment into an answer) You could sue for criminal damage, if any actual damage is caused during the removal of those notices - however, that will cost you an initial outlay in solicitors fees and court costs and isn't guaranteed to have a successful outcome. You could also just take this as a learnable event and not park in other peoples spots? The owner of the parking spot may have the legal right to have your car removed at your expense, and/or issue you with a penalty charge if suitable notices have been posted, so you might consider yourself to have got off lightly here perhaps? |
Is "Ghettopoly" legal? I wouldn't say illegal as in criminal. However, I've heard someone sue "Ghettopoly" and win. I check Is it legal to publish a game that already exists but it was 100% developed by me It says rules of the games cannot be copyrighted. What about likeness, etc.? https://en.wikipedia.org/wiki/Ghettopoly Says he has to pay damage. Why? It's obvious that ghettopoly is not the same with monopoly. Also I've heard parody is protected. | According to the Wikipedia article, the ruling against "Ghettopoly" was a default judgment: the defendant failed to produce documents that the court had ordered him to. Since a default judgment is based around procedural issues, it establishes no precedents for the issue the case is based on: you can't say if "Ghettopoly" violates Hasbro's trademarks on Monopoly or not. | The fact that something is illegal does not imply that it is illegal to post pictures of it happening. In general, under U.S. law, free speech protects almost all forms of communications subject to a handful of narrow exceptions and this is not one of them. There are many legitimate reasons one might want to post video of a fight (e.g. to identify crime perpetrators for purposes of prosecuting them), but no legitimate purpose is legally necessary. Surely as a platform Reddit cant hide against it being a platform of free speech in this case? They most definitely can. Reddit is also not responsible for user posted content under Section 230 of the Communication Decency Act, even if it were illegal for the person posting it to post the content | Copyright law doesn't say the art isn't copyrighted if it was made unlawfully. It seems the art can be copyrighted and the act of making it can be a criminal offence. I'm not aware of any such copyright cases that have gone to trial. A fairly well known case that settled out of court is that of Jason “Revok” Williams and H&M. Williams noticed his art in a photograph used in an H&M marketing campaign. His lawyer sent a cease-and-desist letter to H&M. In response, H&M applied for a court order stating that the product of an unlawful act could not be copyrighted. Following some bad publicity H&M relented and settled with Williams. H&M stopped using the photograph and withdrew the application for the court order. (News source) ... The debate over street artists’ copyright privileges has entered courtrooms quite a bit over the past few years, according to Philippa Loengard, deputy director of Columbia Law School’s Kernochan Center for Law, Media and the Arts. ... The [H&M] claim wasn’t surprising, Loengard said, but it also doesn’t hold up. At its core, a copyright requires only two things: that the work is original and that it is a tangible medium of expression. [Loengard said,] “ … Copyright is not a legal or illegal sanction of the activity that was done to produce the work. Copyright is a separate entity.” Another case settled out of court is that of Joseph "Rime" Tierney and Moschino. Tierney sued Moschino for using his art on its designs. One day before the court was notified of the intention to settle, Moschino sought to have the case dismissed on the grounds that unlawfully made art could not be copyrighted. (News source) "As a matter of public policy and basic logic, it would make no sense to grant legal protection to work that is created entirely illegally." | Whenever there is a license to share things, the license creator wants the license to be widely used, but absolutely does not want slightly different licenses that could be used to trick people, or that just cause legal problems when used. Normal copyright law applies. And for the reasons above, the GPL license as an example allows you to copy the license verbatim but absolutely doesn’t allow you to make any modifications other than changing who is the person licensing a work. I would be curious what happens legally if someone licenses something with a sneakily modified copy of the GPL and then makes claims against a licensee who assumed it was the original GPL. | You don't just want to ask, you are required to obtain a license (or in other terms: the OK of the author*). Your game is based on a book. That makes your game a derivate work. Under berne convention, any signer state has to make sure that the author* has the right to authorize any derivate. That includes translations, films, or games. Without a license, you violate copyright law. It doesn't matter if your game is free. To stay safe, you need to obtain a license. Quite some authors would be happy to cut a deal, license or guidelines for fan-projects. As an example, the late Sir Terry Pratchett OBE has specific guidelines on what is ok and what not. Ask your author* about these questions and consult a Lawyer! Only then make your fan project! * This means the author, their estate or whoever they assigned their rights in the work to. Some examples: For that teenage wizard in a private castle charter school that'd be a certain J.K. Rowling. For those hairy-halflings running all over the continent hunted by orcs that'd be the J.R.R. Tolkien-Estate. And for those space wizards using blades from solid light that'd be The Walt Disney Company or one of their subsidiaries. | In my opinion, you are totally free to publish the information. There are two areas of law that can be cosidered - private and public law. In the private law area, you can be liable for revealing trade secrets, but only if you agreed to keep them by a contract. Trade secrets do not exist by themselves (there are minor exceptions, eg. in competition law, but those do not concern us), they must be protected by contracts. Another private limitations, like libel laws, won't apply here. This is not uncommon, but not in cars - you can find clauses like these in software license agreements. Then there is the public area. Is there any regulation, any policy of the state, that prevents you from publishing it? I am not aware you whole legal code of your state, but I doubt there is. It would be a harsh limitation of freedom of speech. Even if the modification could lead to illegal effect (like, modifying toy weapon to kill by rising its power...) it would be only illegal under very rare circumstances. To conclude it - freedom of speech can be limited only if there is sufficient public interest to do so, and I don't see any. | 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 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. |
What is the authority of the clerk of court? In the United States, does the Clerk of Court typically have any type of decision-setting power, or does the Clerk's authority extend only to carrying out directives of judges? | The answer is going to vary from state to state and, even within a state, from jurisdiction to jurisdiction. However, in general terms, non-judicial court officers, such as clerks of court and prothonotaries, will have specific tasks delegated to them by the court; they can make decisions on matters that the legal system does not consider to require judicial discretion and judgment. These are often described as "ministerial." They may include significant decisions with significant consequences: for example, dismissing a case, or granting judgment against a party, where a party has missed a deadline. In some if not all cases, these decisions can be appealed to a judge, but are unlikely to be overruled. There are also another class of non-judges, such as magistrate judges and administrative law judges, who take on more traditional, non-ministerial judicial roles, acting and making decisions that call for the exercise of judgment; again, these are generally appealable to a regularly appointed or elected judge. The short answer, then, is: Clerks of court cannot do everything a judge can do, but they can act on their own discretion when the matter falls within their ministerial authority. This authority can include, in appropriate cases, deciding who wins and who loses a lawsuit. | Generally speaking, British courts, when making judgments on constitutional matters regard themselves as interpreting existing law, rather than creating new law. But technically speaking, any legal precedent established by a court can be interpreted as "creation of new law". For the avoidance of doubt, the sources of law in the law of England and Wales include: statute law, constitutional convention, prerogative powers, common law, and legal commentary. I may have missed some out and may edit those in later. Common law refers to the judgments of courts. So here we come to your question: Several legal principles and precedents were established by this judgment, and you may consider this new "law": The court held that prerogative powers are justiciable - courts can limit the scope of these powers The prerogative power in question had limits. It can be limited when its use has an extreme detrimental effect on the democracy of the UK and parliamentary sovereignty. What is important with point one is that the court recognised that this power has always existed, stemming as far back as the bill of rights in the 17th century. As such, the court is implying that it is creating nothing new, but recognising a law that has always existed. You will see a LOT of this when studying constitutional law. | Generally, No Contempt powers are rather broad, but not that broad. A judge has power to find anyone in the courtroom in contempt, if that person acts in violation of he rules or of the judge's instructions. A judge has the power to find any party to the case in contempt if that person violates orders from the judge, unless there is some overriding circumstance, for example if the person's action was an exercise of a constitutional right, or if the judge's order is held (by a higher court) to be unreasonable. A judge will have the power to issue orders to people not otherwise parties if this is needed to preserve the judicial process, such as "gag orders" to prevent bias from contaminating a trial. These often have conflicts with first amendment rights or other rights, and there have been various cases on exactly how far a judge can go in such matters. But if the Judge is within those rules, violations of the judge's orders may be punishable as contempt. But an ordinary individual who is simply expressing disapproval of the judge, even in a highly disrespectful fashion, neither in nor near the courtroom, should not be subject to a contempt citation, and few judges would try to invoke such a power. Note that a judge can always issue a contempt decree or citation, and may be able to have the person jailed, if the person is within the court's jurisdiction. But if the citation was an abuse of discretion, it can be overturned and the judge may be subject to a damage suit, in an egregious case. Charles Rembar in The Law of the Land wrote of one case where the judge had had a bailiff purchase coffee during a recess, and found it not at all to his liking. He had the coffee-shop owner arrested, and brought into his presence, and proceeded to scream at him over the poor coffee. The owner later sued the judge, and received a 6-figure damage award. as Rembar put it "The price of coffee is going up all the time, and it seems that the jury felt that Coffee with scream was extra." | The Constitution does not state your opinion of SCOTUS's job, instead it just says that there shall be one supreme court with judicial power, and it says what kind of cases are within the jurisdiction of that court. Thus The Constitution does not mandate whether rulings will adhere to the doctrine of stare decisis, will be based only on a narrowly literal interpretation of The Constitution, or will be based on a general sense of justice. The Constitution also does not say anything about the rules of that Supreme Court, therefore the court is free to set its own rules, and to allow or to not allow amicus briefs. Many points raised in amicus briefs fall on deaf ears, sometimes because they are based on non-shared legal assumptions. You can read a very brief summary of the over 140 amicus briefs in this case here. If you read various SCOTUS opinions over the past 225+ years, you will see that the court does make reference to fact, not just statements of the law and constitution. This brings it well within the scope of "potentially relevant" to determine some fact. The lawyers get to argue how facts relate to legal conclusions, but the basic fodder for any legal decision is some set of facts. The specific briefs you mentioned are: Pro-Life Obstetricians and College of Obstetricians. The latter's argument is self-summarized as Amici’s position is that laws regulating abortion should be evidence-based, supported by a valid medical or scientific justification, and designed to improve—not harm—women’s health Pro-Life Obsetricians' position is self-summarized as support for a law that rationally furthers Mississippi’s interest in protecting women’s health from risks posed by later- term abortions, which are now well established in the literature These statements refer to interpretive doctrines previously established by SCOTUS, but not literally expressed in The Constitution. In US v. Carolene Products Company, 304 U.S. 144 introduced concepts of constitutionality (not literally stated in The Constitution) whereby cases could be reviewed either with "strict scrutiny" for protection of Constitutional rights or else discernment of a "rational interest" in government taking a certain action. Either of these kinds of judicial review require a comparison of law to "the facts". Hence "the facts" can be legally relevant. | To the title question, yes, of course, Justices are subject to the law same as anyone else is (at least in theory; whether actual practice bears that out is another matter). Chief Justice Roberts (and the rest of SCOTUS, and a good chunk of the judiciary to boot, and then some) was a named defendant in the case Shao v. Roberts that was appealed to SCOTUS. The Justices all recused themselves rendering the court short of a quorum and leaving the prior appellate court decision to dismiss the case sua sponte in place. However, Justices essentially police themselves. As the head of the judicial branch they are largely independent of Congressional or Executive attempts to control how they go about their business. Recent calls to create a legal code of ethics for Justices exist because such a code perhaps cannot, and currently does not, exist under the current constitutional order. As such Justices make their own decisions on when to recuse (see my answer here for further details). Your hypothetical justice would do the same, and the court would proceed as it always does whether they do or don't. | Any court from a municipal traffic court on up can declare a law unconstitutional and the U.S. Supreme Court is almost never the court that does so in the first instance. Also, while the jurisdiction stripping law that you suggest might be unconstitutional, it is not obviously unconstitutional. The relevant language is in Article III, Section 2 of the United States Constitution (this has been modified by the 11th Amendment in ways that are not pertinent to the issue at hand): The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The key language being the language in bold, who scope and limitations are the subject of hot debate in legal scholarship. For example, both military tribunal law for non-soldiers and the collateral review of death sentences implicate this provision. An issue related to U.S. Supreme Court jurisdiction over military court-martial court composition will be heard this year in oral argument before the U.S. Supreme Court. There is also debate over whether the jurisdiction of every single federal court can be removed from a matter within the judicial power of the United States. In that regard, keep in mind that the United States federal court system did not have direct appeals of criminal convictions at all until the 1890s, although you could challenge, for example, the jurisdiction of a criminal court over your case with a writ of habeas corpus which is a collateral attack on a conviction in a separate civil lawsuit formally directed at your prison warden. That being said, as far as I know, a law is considered in effect until declared unconstitutional. It is illegal to break an unconstitutional law, until declared so. You are wrong. A law that is unconstitutional on its face is, in terms of legal theory, unconstitutional immediately upon enactment and a court simply acknowledges that fact. It is not illegal to break an unconstitutional law even if no court has yet declared it to be unconstitutional (in U.S. jurisprudence). A law that is unconstitutional as applied is unconstitutional in application at the moment it is applied unconstitutionally, and again, a court merely acknowledges that fact. | Judicial appointments in England and Wales (plus courts that cover the whole of the UK) are made by the Judicial Appointments Commission. This was set up in 2006 to improve the separation of powers in the UK, removing the ability of a government to select sympathetic judges. The committee comprises ...the judiciary, the legal profession, non-legally qualified judicial office holders and the public. So it could be said that judges in the UK are to some extent self-selecting, but the commission responsible also has members who are not judges. | The Constitution of the United States: Analysis and Interpretation, also called the "Constitution Annotated", is the constitution of record: the only constitutional law treatise formally authorized by federal law, the Constitution Annotated functions as the official Constitution of record What version is authoritative can be meaningful. See William W. Van Alstyne, "A Constitutional Conundrum of Second Amendment Commas". And although phoog and I have provided different answers, I think we are both correct. The text as shown in the Constitution Annotated is what is universally accepted as the version to quote from in judicial submissions and reasons. But it's because it has drawn from the version in phoog's answer. Basically, the document in the archives is authoritative, but there is no need for writers and judges to go look at that when they are quoting, because the Constitution Annotated is deemed to have replicated that content faithfully. |
Can you get jail time if you were bribed forcefully against your will? Let's say you are a judge presiding over case regarding crimes committed by a criminal group. Then, the criminal group tells you to not give them a harsh sentence or else they will get back at you by hurting people that are close to you. Since they are a powerful and resourceful group of criminals, you take their threat seriously and decide to be on their side. Can you be punished for doing so if it was discovered afterwards? What if they force you to take money, to make it seem like you took a bribe? Note that you really want to protect your family and friends, and you know that any federal organisation (FBI, CIA, etc) will not be able to reliably protect them (since the criminals are very resourceful). | There is a defense against criminal charges, the defense of coercion. In Washington state (under the name "duress") (1) In any prosecution for a crime, it is a defense that: (a) The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or she or another would be liable to immediate death or immediate grievous bodily injury; and (b) That such apprehension was reasonable upon the part of the actor; and (c) That the actor would not have participated in the crime except for the duress involved. | Unless the Youtube Video shows them committing a crime, then no, they couldn't be arrested and tried for a crime. Them saying it, not under oath, is just hearsay that has no evidentiary value unless there is already other evidence they have committed a crime. In that case, its an admission. But there must be other, either circumstantial, or actual physical evidence of a crime. Past intoxication is not a crime, either. Possession of drugs, if caught with them is. But saying you got high is not. People have walked into police stations and confessed to murders. But with no evidence, no body, no name of a missing person, they can't even be held after the holding period for investigatory purposes expires. If the video shows them committing assault, or breaking and entering (there actually are idiots who post this stuff), the video is actual evidence of a crime and it is often used against them. The statements can be used to begin an investigation, but people don't usually confess to anything worth pursuing even an investigation. The fact that someone says they used to do something criminal is not enough. For all you ( meaning anyone ) knows, the statute of limitations has expired because they "pirated games" 10 years ago. Your comment is right on. | Police make arrests when they (or a judge) decides to Police have the legal power to make an arrest if: they witness a crime being committed. Indeed, anyone can make an arrest in this circumstance. they have reason to believe that a crime has been committed. they have a warrant from a judge. Some reasons why police can, but choose not to make an arrest are: they don’t believe a crime has taken place. Accusations are easy; convictions are hard. they are exercising the discretion they have under the law to not prosecute a crime where it would not be in the public interest. Factors at play include the seriousness of the crime, the availability and strength of the evidence, the police and court resources available, other matters they have before them etc. they do not have sufficient evidence now but will pursue investigations to get more. Arresting someone starts all sorts of legal clocks ticking and if they can’t bring their case in time the defendant will walk. | At the federal level, per 18 USC 751, escaping is a crime. In United States v. Allen, 432 F.2d 939 it was held that an arrest need not be lawful in order for an escape to be illegal; Laws v. US states that "This court has said that a sentence imposed for a violation of 18 U.S.C. § 751 is 'not affected by the validity of the sentences being served at the time of the escape'", giving numerous citations. I don't find cases where the escapee was exonerated; prosecutors have the discretion to not prosecute for committing a crime, so it would be hard to find a case where the legality of such a conviction was upheld (also, hard to find a jury willing to convict in such circumstances). | There is no direct equivalent to the American-style plea bargain, but there are some similar procedures: Basis of Plea A defendant can offer a written guilty plea to a lesser offence with the same (or closely similar) facts as the offence charged, which has to be accepted by the court to take affect. The prosecutor must consult with and seek the views of all victims, and if the plea is accepted it must not be misleading or untrue. The Attorney General's Guidance provides more information on the process and the detailed requirements (which are too long to repoduce here). Assisting Offenders The Serious Organised Crime and Police Act 2005 offer the option for a "minor-player" defendant to assist the prosecution and/or police by providing information to secure convictions of the principle offenders in return for immunity from prosecution (section 71), a restricted use undertaking (a version of immunity) (section 72) or a reduced sentence (section 73). Immunity requires full and frank disclosure of all previous offending (referred to as "cleansing"), but for whatever reason the defendant does not "cleanse" they may still be eligible for a lesser sentence. Either way the assistance - either as evidence at trial or as intelligence given in confidence - should be substantial and verifiable to be eligible. Statistics There is, as far as I can, no publicly available detailed statistics on these procedures, presumably the reason is that vast majority of the former cases go unreported and, despite some being public, there is a real risk of retribution to the informant in the latter. | The potential problem is if there is a form which you had to sign which says "I am a US citizen", and you signed the form (who reads the fine print, anyhow?). Unfortunately, that statement is false, and there are consequences for making a false statement. However, that law penalizes false statements with the intent to deceive, not mistaken statements. Nevertheless, this is a matter that a professional really needs to deal with. If there was no form and they didn't verbally ask you to assert that you are a citizen, then there is less of a problem (for you), but still one needs to be extremely cautious in dealing with the court. [Addendum] It is highly likely that the form contained wording like "swear" or "certify" and mentions "perjury", so the error would be in the ballpark of perjury. Perjury is making "a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath". Aggravated perjury is perjury which "is made during or in connection with an official proceeding and is material". The term "material" means "matters; is not inconsequential". The consequence of a non-citizen improperly serving on a jury is that a mistrial has occurred, which is not inconsequential. Aggravated felony is a third degree felony. The penal code says that An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years. (b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000. I must emphasize that an essential element is "intent to deceive and with knowledge of the statement's meaning", an element that cannot be present if there is no awareness of such a statement. Thus an innocent mistake could be legally excused. When you become aware that a statement made under oath was false (assuming such a statement was made), then in maintaining the falsehood, that would be intentional deceit. This is why it is necessary to consult with a lawyer. On the Houston form, you would have to check the "are a US citizen" box. The Fort Bend county form has you certify and sign on the front page: it does not require you to certify that you are a US citizen, only to certify (and sign) if you are not – so if you failed to read the back side, that isn't a literally false statement. I can't locate an online form for Tarrant county, so dunno if that out is available. | Exactly the same thing that stops the same rogue lawyer from putting on a mask and robbing a bank. One is the crime of fraud and the other the crime of armed robbery but they are both crimes. People commit crimes all the time; that is why nearly 1 million people in the U.S. are in jail right now - some of them may even be in there for crimes they actually committed! Were your lawyer to commit this crime he may get caught or he may not; if he does he's going away for a long time and can never work as a lawyer again. So it's simply a matter of risk assessment; oh, and ethics | If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear. |
Can a person purposely provoke someone to hit him and then report a crime? Say someone purposely provokes another person by insulting him, knowing that this person is easily provoked. The provoked person then hits him. Can the person then report a crime or even file a civil lawsuit on his assaulter, all in the aim of getting that person behind bars? | It is legal to insult a person (at least in the US: it's a crime in Indonesia). It is legal to report a crime. It is therefore legal to insult a person and report the ensuing crime. The law assumes that a person has enough self-control that they will not commit a crime when insulted. A person who hurls the insult might be found contributorily negligent, which could reduce the assailant's liability or even eliminate it, depending on the state. | In the US, obscenities, insults, racial slurs and so on are legal, owing to the First Amendment. An actual, believable threat to maim you would not be legal, under Cal. Penal 422, but "I oughta punch you" would not be a criminal threat. Some forms of aggressive driving constitute reckless driving, if they are driving "in willful or wanton disregard for the safety of persons or property". It is also against the law to follow too close (you must follow reasonably and prudently). Exceeding the speed limit is a violation of Veh. Code 22352, even if it's to pass a guy on a bike. Of course, we can't tell if you are obeying the law, but even if you were doing something illegal in your biking such as blowing away a stop sign, "the other guy was bad" is not a defense against a citation for illegal driving. | Yes, and also there needs to be intent to cause alarm or distress. See section 66 Sexual Offences Act 2003: (1)A person commits an offence if— (a)he intentionally exposes his genitals, and (b)he intends that someone will see them and be caused alarm or distress. (2)A person guilty of an offence under this section is liable— (a)on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b)on conviction on indictment, to imprisonment for a term not exceeding 2 years. For clarity, although the above legislation uses the masculine subject pronoun "he", this offence may be committed by a female also. See section 6(a) Interpretation Act 1978: [...] (a)words importing the masculine gender include the feminine; [...] | Can someone be arrested for not being ‘nice’ to police? Yes. The arrest may later be declared unlawful, and the cop could later be disciplined by his boss, but if a cop wants to arrest you now for any reason they just can. Seems weird and an abuse of power to me. The available means of dealing with abuse of power have never been in excess. Could they win such a case? Yes. So could your friend. It depends on many many factors. | It depends on the jurisdiction but, very broadly speaking, the person might be ill such that: they did not know what they were doing or that what they were doing was wrong (insanity) their ability to understand their actions or make a reasoned decision or self control was highly impaired but not to the degree of insanity (diminished responsibility or perhaps provocation) they were unconscious when they acted (automatism - e.g. an offence committed while 'sleep walking') Clearly they lack the same culpability as a person with "good mental health", who consciously committed a criminal offence, knowing it was wrong. That does not mean the ill person can 'get away with it'. Claiming diminished responsibility as a defence to a murder charge may mean the person will instead be tried for manslaughter, which is also punishable by imprisonment. Depending on the circumstances a court (and subsequent people in authority) might be persuaded that the person is so dangerous they must be indefinitely detained and treated without their consent. Doesn't this sort of allow psychiatrists to make up the law, because they can decide if something is considered a mental condition? Just because a psychiatrist comes along doesn't mean the court will do what the psychiatrist says is best - the court will hear both sides of the argument, establish the facts, interpret the law and deliver a verdict. Some people would argue that someone who would commit such crimes (such as rape) couldn't possibly be in their right mind. Certainly, but so far as I'm aware that defence is very rarely used and never successful. | The first thing it depends on is where you live. The US has no law requiring niceness, but perhaps niceness-enforcement exists somewhere in the world. The second thing it depends on is exactly what he does, where and how. If he comes into people's houses uninvited and starts harassing them, that is generally a crime. If he makes nasty remarks to people walking down the street, you can't even sue him. If the person commits in a crime, you can report him anonymously. However, for there to be any prosecution, someone will have to testify in court: anonymous criminal testimony is inadmissible in the US. If there is no crime, just a potential civil action, the part would hire an attorney to file a complaint, etc. and that party would be named (not anonymous), would have to testify, and would also have to have been harmed. The police will not get involved in a civil dispute. Based just on what you have said here, your attorney would very likely say that there is no case to be pursued, and your only solution is to ignore him. | You acted illegally in assaulting your fellow student. When you are in public, a person can legally take your picture, and you are not allowed to assault a person because you do not like their legal actions. Any degree of force is excessive except in certain responses to illegal fource, and even the threat of force is excessive. You also have no right to demand that a person prove that they didn't take your picture, and certainly no right to enforce that demand with physical violence. | I'm not sure a case of harassment could be made out (it would depend on the circumstances in which you purportedly did those things or threatened her, except for touching her. Sexual assault The Sexual Offences Act 2003 defines sexual assault as: (1) A person (A) commits an offence if— (a) he intentionally touches another person (B), (b) the touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. To your questions: What is the law on a 16 year-old doing the things listed above with a 14 year-old? Same as the above, except what would happen if it was made out that there was not consent? For sexual assault, it is presumed that if the person is between the ages of 13 and 16, they do not have the capacity to consent. That is - if there is no proof of consent, you are guilty of the offence, if the requisite mens rea - intent - to touch them can be proved. For everything else - it might amount to harassment but that is probably a stretch, I don't see the elements being made out. However, there are certain limits to what people can consent to - you can't consent to someone murdering you in most jurisdictions, for example. ... what would be the best way to go about disproving (in a court scenario) that I did all of these things? You do not have to disprove that you did these acts - it is the job of the prosecution to adduce evidence beyond reasonable doubt that you have done so. You can present evidence that satisfies an evidentiary burden that you did not do these acts, such as not being able to do so (by being in another place), or not intending to do the act. However, you would need to prove that you had consent and believed she was 16 or over to stand a reasonable chance of escaping conviction for the above crime, if prosecuted. As Martin has said - you need to get a lawyer for the right answer here. |
Do I have standing to sue a credit bureau or lender after being approved for a loan but being prevented from signing due to their error? I'm in New York. So, what happened was that I applied for a loan from a loan agency. My credit was good, I was making good income, and my loan was approved. I need to stress that last point. My loan was approved, not just superficially, or that things "seemed good", I was approved. I have emails saying that, specifically: Congratulations Sean, Your loan request has been approved! Log in now to review the terms of your offer and sign your loan agreement. So, I was approved, and just needed to sign electronically. Great! Except, in order to sign, I had to verify my identity through a credit bureau questionnaire. I kept failing this questionnaire, because it was giving multiple choice questions where no answer was possibly correct. For example, it asked how much how much I owed in student loans listing 4 non-zero amounts to choose from, and I've never had a student loan so there was no correct answer. This wasn't a case of identity theft or anything like that. There are no student loans on my report with any bureau. Another similar question asked me to name a street I used to live on, but again none of the choices were correct. About half the questions were using my information, and I was able to answer them correctly, but it was not enough. I made numerous calls to the credit bureau and the loan agency to try and resolve this, but no one was able to help me. The loan agency was unable to consider any alternative method for me to sign for my loan, and the credit bureau was even more unhelpful, having no idea why it was happening and no solutions to offer. If I had been able to sign for the loan I was approved for, I would not have suffered damages that I did after soon after losing my job and apartment. Do I have standing to sue the loan agency for failing to provide an alternate method of identity verification after approving me for a loan? Or for the credit bureau for having a malfunctioning identity verification system that preventing me from being able to sign for a loan I was approved for? Or both? | Do I have standing to sue a credit bureau or lender after being approved for a loan but being prevented from signing due to their error? Unfortunately, no. The email you got from the loan agency reflects that no contract was formed yet. The email merely is the loan agency's expression of interest to proceed toward the formation of that contract. Absent that formation of the contract, even if for reasons beyond your control, you are not entitled to the benefits or consideration(s) the contract would provide. Nor would the lender be entitled to your compliance with the terms of that contract, terms which might not even be informed --let alone known-- to you. There is no legal obligation from one party to the other. Lastly, the agency's or bureau's faulty process/questionnaire is not actionable either. Lender's reluctance to employ an alternative method is within his freedom of contract. | 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. | There is a legal dictum, de minimis non curat lex, which might lead to an exasperated court official refusing to issue your lawsuit (with or without providing the $1 out of his own pocket to save everybody's time); I recommend you look it up. But there is no official term for what you suggest, although many lawyers might off the record provide colourful descriptions. If you wish to waste your money on such a claim, then obviously in your view it is worth pursuing. Clients often say "the principle is more important than the money", though they say so more often before they receive the bills than after. | You have no injury and so no basis for a suit, unless your claim is that the educational institutions you attended were fraudulent (in which case you'd most likely sue them, or try to petition the government for existing relief procedures for such cases). Since you don't, you have no injury. All parties entered their loans under the understanding that paying them off was necessary and potentially long term and arduous. The government forgiving amounts on existing loans does no injury to those who already paid. There is no injury in you having done what you agreed to do, in accordance with governing laws. Forgiving some debt for some people is just an act of executive largesse, and does not hurt you in any legally cognizable form. Indeed, it could be said that you have benefitted from having paid them off. For since doing so you have no longer been burdened by them, saving you both money and potential credit score or even legal issues, whereas those who still have debt are still so burdened. Plus paying them off yields benefits in your credit score and general loan worthiness; you can expect to have been able to get meaningfully better interest rates than someone identical to you but with substantial student debt. These are all benefits nobody who gets forgiveness will retroactively receive. At best, going forward they will get to be on similar footing as you. And having more people on the same beneficial footing as you is not a legally cognizable injury in fact to you. | It's governed by your credit agreement or some similar document, which you surely signed as a condition of receiving credit. There was almost certainly a clause that said the bank could reduce or revoke your credit line if you missed payments. | Is sales person required by law to give a copy of signed contract at the time you sign up for service? No. If I would ask for copy of all documents from that company are they required by law to send her these copies? No. Is there a law that mandates process on how contracts should be signed in California? There are many, however, they relate to specific classes of contract. In general, it is not a requirement that a contract be signed or even written; verbal contracts are totally legitimate. Given that every single transaction where money changes hands in return for goods and/or services is or is part of a contract it is not feasible that they all be signed. Have you bought a cup of coffee today? Did you sign a contract when you did? Here's the thing Your friend has learned several valuable business lessons: the first is some people in business will rip you off. If you are a consumer then you have (some) legal protection, however, if you are in business then the courts and the legislature expect you to look after yourself. Your friend has signed a contract. Pretty much, any court will consider that what they signed would be the entire contract unless there was compelling evidence to the contrary. Her word that the sales rep said there would be no break charges would not on its own be compelling evidence. Your friend has an obvious incentive to lie. Here is the second lesson: don't sign anything unless and until you have read and understood it; hire a lawyer if you need to in order to understand it. Now, either under the contract the company is legitimately allowed to charge these fees or it isn't. Without having a copy of the contract you have no way to tell. Thus the third lesson: always keep your own copy of everything you sign. What your friend can do is: nothing. Don't pay the bill, write to them saying that she disputes that she owes them any money at all. If you want to be provocative, suggest which court would be most convenient if they want to prove the debt. Odds are this will go no further. If they do proceed with a summons then they will need to state their case. At that point she can request through the court a copy of the contract they are relying on. If their claims are legit she can simply roll over. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | The Facebook forum doesn't prevent a contract from being formed. But, for a contract to be formed there must be an affirmative agreement, not silence (at least in cases that aren't between merchants). If they later decide to work together without reaching an agreement on the details, the draft contact could be considered, but the Facebook forum for its delivery and that fact that it wasn't expressly assented to might reduce its weight as part of the evidence in an attempt to determine what the terms of their oral or implied agreement to work together involved. It would be very unusual for a broker not to get a signed agreement in writing to pay his fees, although an oral or unsigned agreement to pay a broker is not necessarily barred by a statute of frauds. A finder of fact would be quite skeptical of a broker's claim to have an agreement in those circumstances and often the professional regulatory provisions related to brokerages would require that fee agreement must be signed and in writing even if contract law does not require that this be done. |
Is it legal to give fictional characters titles of real-world government officials? Is it legal to refer to fictional characters in a video game with titles of real-world government officials, e.g., a Congressman, the President, etc.? I've seen lots of movies where they refer to "Mr. President" as a character in the show, but who bears no relation to the real-world incumbent president. So I think this is fine, but I'd like to know if there are any caveats involved. | It's fine, as long as it's clear that it's fiction As far as I know, titles such as "Mr. President" aren't specifically restricted in any way. That said, there are a few relevant laws here regarding impersonating government officials or using the seals of government offices. Generally speaking, they prohibit doing things that are intended to mislead people into thinking that you are part of or otherwise affiliated with the government. One is 18 U.S. Code § 912, which states that: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both. I'm not entirely clear whether the President or members of Congress are included in "officers" here, but it only criminalizes impersonating such officers for the purpose of fooling someone into doing something for you. More directly relevant to the Presidency and members of Congress is 18 U.S. Code § 713, which governs the "Use of likenesses of the great seal of the United States, the seals of the President and Vice President, the seal of the United States Senate, the seal of the United States House of Representatives, and the seal of the United States Congress". It forbids use of the seals of those offices for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval by the Government of the United States or by any department, agency, or instrumentality thereof For official insignia or uniforms more generally, 18 U.S. Code § 716 exempts uses that are not used or intended to be used to mislead or deceive...[or are] used exclusively for a dramatic presentation, such as a theatrical, film, or television production. | This kind of quotation, for commentary, criticism, or reference, is generally allowed without obtaining permission. In the US, this falls under fair use (see 17 USC 107. In the UK and most commonwealth countries, it falls under fair dealing. In other countries there are various exceptions to copyright that will probably cover this. Even answers that do not directly quote the rule books often use information from those rulebooks to write an answer. Facts and ideas are never protected by copyright, so this is not going to be an issue. See 17 USC 102(b), which provides: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. As a comment by user Trish reminds, game rules are facts and are not protected, although their exact wording may be. | The argument would have to be either a derivative work under copyright, or a trade dress/trademark claim. Neither sounds very solid at all. Neither copyright nor trade dress/trademark protect ideas like a TV format. They can only protect very similar expressions of an idea that necessarily flow one from the other and, for example, the game mechanics can't be protected by copyright. | No. The images are copyrighted, and you are using them in a way that would leave you with virtually no argument for fair use. The factors for fair use are set out in 17 USC 107, and they indicate that the courts would reject your use: The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes: There's no indication that your use would be for nonprofit or educational purposes. The nature of the copyrighted work: Works of fiction and art are highly creative works at the heart of the policy for copyright protection. The amount of the portion used in relation to the copyrighted work as a whole: You are apparently copying entire images, though I suppose you could argue that each image is just one small portion of a larger book or website. The effect of the use upon the potential market for or value of the copyrighted work: You are trying to create a board game, putting yourselves basically in direct competition with the makers of D&D. I generally prefer a pretty liberal interpretation of what constitutes fair use, but this just has virtually nothing that would make me comfortable arguing in your favor. | Where the President explicitly tells a newspaper that they should reveal their sources. Is this not illegal in the US? It is not illegal. Well, it would be a U.S. Attorney, rather than the President himself. You're thinking of shield laws, but no such law exists at the federal level. Moreover, although some people might think that the First Amendment ("freedom of the press") would protect a journalist in such a case, the Supreme Court has held that it doesn't, though the government is required to "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest". So if a reporter were subpoenaed in federal court to reveal a source, and they couldn't convince a court to quash the subpoena under the Branzburg test, they'd have to either reveal their source or be held in contempt. In practice, many reporters have chosen the latter, and served time in jail rather than reveal the source. For instance, Judith Miller. There've been a number of proposals to create such a federal law, but so far Congress hasn't seen fit to do it. According to the Wikipedia article, every state except Wyoming has some sort of shield protection for journalists, either in statute or case law, though the protections are not necessarily absolute. So a state court or prosecutor would find it much more difficult to enforce such an order. | Depends on the purpose of the society and physical location of its members. A secret society aiming to coordinate bank robberies would be pretty much illegal anywhere. A secret society sharing photos of cats would be fine in most parts of the world. I'm not sure about the jurisdiction. All the places in which members live? Where the servers are located? The place of residence of the founder? All of that matters. Members, founder, servers are all subject to the laws of the land where they are. (That said, the fact that the members only interact online changes nothing.) For example, say there is a secret online society with some sort of political agenda and members all over the world. Whilst for members living in most of the English-centric world (UK/US/Canada/AU/NZ/Singapore etc.) such a membership would be perfectly legal, members living in Italy and Poland will be breaking the law. | I don't believe Canada uses the public official/figure distinction. American defamation law uses the distinction to determine whether to require proof of actual malice, but Canada does not require proof of actual malice. Canadian defamation law has a lot of other parallels to American defamation law, though, especially in terms of privilege. I'd expect the University could claim any of several available privileges, including truth, qualified privilege, and fair comment. And because it's a government institution, it's conceivable that it might even claim absolute privilege, though I definitely don't know enough about their interpretations of the privilege to say one way or another. For a broad primer on defamation law in Ontario, you can check out this report from the Law Commission of Ontario. | Many states have laws providing for a residence for their governors, but I know of no state that mandates the use of those homes. Oregon's previous governor, for instance, lived in Portland rather than the governor's mansion, Mahonia Hall. Some cities do the same. In New York City, Mayor Bill De Blasio lives at Gracie Mansion, but Mike Bloomberg never did. Although we don't always think of them as government officials, some government schools provide their presidents with state-funded residences, as well. At the University of Virginia, the president lives at Carr's Hill. |
Which amendment does this violate? Bob requests a lawyer to be present while the police interview him after being arrested. The police just laugh. | The Sixth Amendment to the US Constitution guarantees assistance of counsel for the accused in all criminal prosecutions. The Fifth Amendment protects a person from being forced to self-incriminate. Taken together, in Miranda v. Arizona, the Supreme Court interpreted this to mean that police cannot continue interrogation after you have requested an attorney. Laughter is actually not a violation of your rights, the violation would come from continuing to interrogate you, or in prohibiting you from contacting your attorney or not providing an attorney if you cannot afford one (via the public defender's office). | Regardless of the context of the first solicitation, Officer Jones' second solicitation was made in willful refusal to accept Betty's unambiguous "no" for an answer; this is sexually coercive behavior, specifically postrefusal sexual persistence. If this question is assessed from the perspective of the "average" woman, then after her initial declination, extraction of a "yes" cannot be considered uncoerced. Here's a question: how many times does she have to say no before it starts to count? Before it counts against her finally being exhausted, harassed, or intimidated into capitulating? Because by that logic, he never has to stop; he can continue to harass her until he finally accomplishes his objective (grounds to arrest her) - in which case, why bother with the pretense? If it takes 200 "no's" to wear her down to "whatever", then the first 200 "no's" just didn't matter as much as the first "whatever", so why bother with the formality of pretending like the first mattered when it clearly does not? To demonstrate the significance of her initial "no, thanks" and his subsequent refusal to accept it from another perspective: if Betty and Jones were coworkers in the same office, if he continued to solicit her after being told no the first time, that would be the definition of sexual harassment on his part and it would not matter how genial or friendly or casual he thinks he's being; furthermore, if her workplace failed to intervene on her behalf, they would be engaging in sexually discriminatory behavior by creating a hostile work environment, regardless of how genial / friendly / casual, etc. It's hard to see how this could act as evidence of her having committed a crime in one context while being grounds for termination of his employment in another context. HTH. | united-states "I know is it illegal for authorities to question a suspect when their lawyer isn’t present" This is not really true, at least in the US. The suspect must explicitly ask for a lawyer. Even saying "Maybe I should talk to a lawyer" (ie Davis v. U.S. (512 U.S. 453 (1994)) isn't enough, they have to say "I want a lawyer". Until they invoke the right, an officer can question all they want (provided they were informed of these rights, except for certain situations which are relatively complicated. See Miranda Rights). So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that. With or without your lawyer, this is called interrogation. You can filter your responses through a lawyer, or waive your right to a lawyer and answer directly. | Some of the documents are here. As document 61 of the trial, the government motion for bench trial, argues, There is no constitutional right to a jury trial for criminal contempt charges resulting in a sentence of imprisonment of six months or less. Arpaio responds in document 62 that Defendant Arpaio acknowledges that there is no constitutional right to a jury trial for defendants charged with “petty” offenses where the maximum sentence does not exceed six months imprisonment, but continues the argument (the point being that there is no question that there is no absolute right to a jury trial, esp. in the instant case). He argues Many of the actions of the referring judge will become an issue in the case, calling into question the objectives and motives of Judge Snow. A public official’s actions and motives should and must be decided by an impartial jury of the elected official’s peers. The court order is document 83. There, The Court finds that this case is appropriate for a bench trial. This case focuses on the application of facts to the law to determine if Defendant intentionally violated a court order. Essentially, since there is no right to a jury trial and no compelling reason to grant a jury trial (e.g. the court found no merit to his argument that there would be the appearance of impropriety), the motion for a bench trial was granted. The order cites case law regarding the "not longer that 6 months" rule from Muniz v. Hoffman, 422 U.S. 454; United States v. Rylander, 714 F.2d 996; Taylor v. Hayes, 418 U.S. 488; United States v. Aldridge, 995 F.2d 233; United States v. Berry, 232 F.3d 897. | I don't think that's an accurate interpretation of the statement. The key difference between the two scenarios is the defendant's legal assessment of who owns the necklace. In the first he thinks he is the owner and can claim mistake of law; in the second, he he thinks someone else is the owner, so he cannot. To say he believes "the law allows for someone to do whatever they want with lost property even if they know who the rightful owner is" is very different from saying he thinks he's the owner. He doesn't think he's the legal owner, he just thinks he has legal rights that include some rights associated with ownership. So if the defendant's statement had actually been, "I thought I was the owner," that would have been a successful defense when the crime requires depriving the owner of the property. The defense was actually, "I thought I was allowed to deprive the owner of the property," which is an admission of guilt when the crime requires depriving the owner of the property. There are a couple questions here: a. A different crime that did not require intent -- or even required a different kind of intent -- could still lead to a conviction. A legislature is free to define larceny differently, so it could say that anyone who recklessly or negligently deprives another of property is guilty. Or it could say that your state of mind doesn't matter and that depriving another of property is larceny regardless of intent. b. In most cases, the mistake of law defense requires that the defendant honestly believe in the mistake; unlike mistake of fact, it does not require that his belief also be reasonable. Either way, the question of reasonableness would probably be a question for a jury, so a judge wouldn't be able to reject it (except in a bench trial). c. Mistake of law is a potential defense to any crime that requires an intent to do something that requires an assessment of what the law is. So if it's illegal to intentionally have sex with a woman who is not your wife, and you mistakenly believed you were in a legal marriage, sex with your non-wife would not be a crime. It has potentially very broad implications, but keep in mind that in many cases, the mistake a defendant would have to claim would be pretty far out there. If it were illegal to intentionally let anyone under 21 years old into your bar, I guess you could argue that you only let a 20-year-old in because you thought the law started calculating at conception, but I doubt you'll convince a jury. Mistake of law defenses still pop up pretty regularly. Here's one just yesterday from the Tenth Circuit. And this one is a Kansas case where a conviction for carrying a weapon while a felon was overturned because the court wouldn't allow a mistake-of-law defense. The Kansas case, though, uses the more modern definition of mistake of law, which also includes reasonable reliance on official statements from the government. In that case, the felon's parole officer had told him that it was OK to carry a pocketknife, but in reality, the law titled "Criminal possession of a firearm by a convicted felon" prohibited carrying knives, as well. | he was arrested despite technically not doing anything wrong He was arrested because there was probable cause to believe that he was involved in the commission of a felony. The arrest was legal even if he was innocent. He has no basis for a successful lawsuit. | The police are mistaken because they don't understand immigration law. Usually, the first step to resolve this problem would be to explain the situation in a letter to or telephone call with the town attorney, elevating it from a police officer who has no training in citizenship and naturalization paperwork, to an attorney, who should either know better, or should be able to find out more easily. | The Fifth and Sixth Amendments are about civil and criminal court proceedings. They do not apply to a university's internal disciplinary procedures, which are the subject of the Dear Colleague letter. Note for example the text of the Fifth Amendment: ... or be deprived of life, liberty, or property, without due process of law. A university's disciplinary procedures do not deprive anyone of their life, liberty, or property. Typically, they only decide whether to suspend or expel the person as a student at the university, or apply other academic punishments (failing grades, marks on transcript, etc). I don't think there needs to be any law "affirming" this. Rather, there is simply no law that requires universities to use Fifth / Sixth amendment standards in their internal disciplinary procedures. |
What are the limits to "cross examination?" A witness takes the stand, and answers a number of questions about the issue in controversy. Then the opposing side gets to "cross" examine him or her. To what extent is cross examination limited only to subjects brought up in direct examination? Can the cross examiner dig into a bunch of background issues in a witness' past to prove bad character or bias, for instance? Or is there an "intermediate" position whereby cross examination is limited to issues brought up on direct examination, plus certain specific "tangential" issues not brought up previously (e.g. "rape shield laws protect a victim from being asked certain questions). | In the United States, different jurisdictions have different rules about what topics may be addressed in cross examination. In the federal courts, Fed. R. Evid. 611 generally discourages cross examination on matters not addressed in the direct examination, although it also permits questions on "matters affecting the witness’s credibility." So if a witness is asked on direct examination only about whether A stopped at the intersection before B crashed into him, the cross examination probably shouldn't go into questions about how severe the injuries were, what the weather conditions were, etc. But the court should allow cross-examination on whether the witness is the plaintiff's sister, or whether the witness was previously convicted of perjury. (Despite the rule, the court has a great deal of latitude as to how to handle these questions, practically speaking.) In the state courts, the rules may be different. In Ohio, for instance, Rule 611 is roughly identical, except that it generally allows questions on "all relevant matters." So now the questions about the weather and injuries are fair game, along with the questions about the witness's credibility. In any event, the questions will remain subject to the other rules of evidence, so questions about sexual history might be excluded by the rape shield, and questions about irrelevant matters should be prohibited, as well. | The answer to this question will be almost entirely informed by the why that you've asked us not to consider. If the prosecutor or judge is a witness, the defendant should be able to call them, but that also means they would have to withdraw from the case under either Rule 3.7 or Canon 3. If the defendant believes the prosecution is tainted by some improper motive, the defendant may raise that objection under Crim. R. 12, but he must do so pretrial. I can't think of any circumstances where the defendant could question the judge or prosecutor in the jury's presence. | The general concept is reporter's privilege, which is a protection against being compelled to testify about confidential information. There is no clear national statute or ruling in the US, but most states have enacted shield laws. Since these are state laws, they vary considerably. It had been thought that the First Amendment protected reporters from having to reveal sources, but in Branzburg v. Hayes, 408 U.S. 665, it was held that The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation That 1972 decision is the sum of what SCOTUS has to say about the topic. States then enacted various protections for reporters against compelled testimony. There are specific law requiring certain individuals to report suspected crimes, whereby doctors and teachers have to report certain suspicions or facts when they encounter them in the course of their work. As a subcase of mandatory reporting, in 18 states, everyone is required to report child abuse (but not in California). There are no mandatory reporting requirements for reporters apart from the limited universal requirement pertaining to child abuse. There are widespread laws against aiding and abetting, so if a reporter drove the getaway car, they would be in trouble – almost certainly not applicable to typical cases of investigative journalism. Some states have a law about failure to report a felony, so in Texas, it is a Class A misdemeanor to fail to report. However, the duty is somewhat narrowly limited to one who observes the commission of a felony under circumstances in which a reasonable person would believe that an offense had been committed in which serious bodily injury or death may have resulted Witnessing murder would be covered by this. Ohio has a stronger law, which creates a duty to report any felony. From what I can tell, California does not have such a law. [ADDENDUM] The Reporter's Committee for Freedom of the Press makes available a by-state compendium of legal sources, with case law for all sorts of situations. | Is it possible for a witness to backtrack and claim that their previous statements were wrong because they misremembered? ... Is the witness now allowed to say something along the lines: "Huh. That's odd. I clearly remember it differently. But it's such a small detail and it was so long ago..."? Yes. Or is it now considered a deliberate lie? A judge's assessment of a witness's credibility and reliability is much more nuanced. See "How is a judge to evaluate a witness's credibility?" | In new-jersey, the offence of perjury is defined at 2C:28-1 of the Code of Criminal Justice A person is guilty of perjury, a crime of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he does not believe it to be true. The Code also provides an opportunity for retraction. Assuming that the statement is material, whether answering "no" is perjury will depend on the witness's understanding of the question and his belief about the truth of the answer. If we assume that the witness understands the question to be about parentage in general, including by adoption, and if we assume that they know they have an adopted child, the answer "no" would be perjury. If instead we assume that the witness understood the question to be narrowly about biological parentage, or if they had forgotten at the time of their answer that they had an adopted child, then the answer "no" would not be perjury. | As I understand, the limited liability that police enjoy, requires that people bringing civil cases against police must prove that the police person should have had a reasonable knowledge of the civil rights that you accuse him of breaking, for the civil case to be successful. This isn't quite right. The test you are referencing is the one for qualified immunity from civil liability under 42 U.S.C. § 1983, which imposes liability on government officials only for violating a "well-established" constitutional right. A rule of law is "well-established" when there is controlling case law in that jurisdiction when a factually similar binding precedent exists in that jurisdiction to show that the alleged conduct is unconstitutional. This test is employing the legal fiction that police officers are familiar with all of the binding precedents in the jurisdiction regarding what constitutes a violation of a constitutional right, which is held against officers. Of course, in reality, almost no police officers have that exhaustive a level of understanding of the law. What the test does, however, is to prevent police officers from being held civilly liable for money damages when they take action which, in fact, violates a constitutional right, but which no case law in a factually similar case that was binding precedent established before the incident took place. Thus, police officers are relieved of liability for incidents that they would have to predict that a future court would find violated a constitutional right. This is sometimes phrased as being justified because a reasonable police officer could not have foreseen a new rule of constitutional law or a novel application of an existing rule of constitutional law to a new situation. One of the reasons that the qualified immunity rule is controversial, however, is that courts have the discretion to decide a case on qualified immunity grounds without determining if the underlying action indeed did violate a constitutional right, and this prevents constitutional law from evolving normally over time to applications in new factually novel situations. The key point, however, is that this requirement that a constitutional right be well-established to be enforceable in a civil action is an "objective" test in that it is decided without any reference to what the particular individual being sued actually knew about the law in the particular circumstances presented. A police officer who acts without actually knowing the law does so at his or her peril. | canada Canada has a similar protection. Section 13 of the Canadian Charter of Rights and Freedoms says that: A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. The person is protected against the use of their compelled testimony or any evidence derived therefrom in any subsequent criminal proceedings (other than for perjury). | It is not as simple as the witness just making the assertion that they are the killer. They will be subject to grueling cross examination to break their story. If the victim was killed at a specific time, perhaps the prosecution can prove the witness was somewhere else at that time, and therefore lying. (No Opportunity) If the victim was killed with a specific weapon, perhaps the prosecution can prove that only the accused had the weapon, and the witness had no access to it, and therefore lying. (No Means) If the victim was killed in a specific way, perhaps the witness doesn't know any of the details of how the crime happened, and therefore is not credible. (No Knowledge) If the accused's DNA is found at the scene, and their shirt is covered in blood, and the witness has no corroborating evidence against them, then the witness is likely lying. (No Evidence) If the witness claims he is the murderer, the prosecution can inquire as to why he killed the victim. The real murderer had a reason: Perhaps money, power, hatred, passion, etc, that the witness may not be able to provide. (No Motive) Planting doubt in the mind of a jury is an effective defense. But lying about who did what, when, how, and why it is not as easy as you suggest. |
Is it possible to have a software license that is free for people, but expensive for mega corporations? I've been searching for a software license that seems like it should exist. The fact that I'm not finding it anywhere makes me wonder if it's just not possible. This page has a pretty good list of licenses (https://choosealicense.com/licenses/) none of which achieve something that seems pretty obviously desirable: To have a software license where you can share your code, but you don't end up doing free labor for mega-corporations. I've heard from my non-profit friend that sliding-scale fees can be a bit of a legal hassle... so maybe that's why no such thing exists? Is it legally possible to have a software license which is in-effect open for individuals and small companies, without being free labor for large corporations? | It is possible if and only if you can say exactly what you mean, and what you mean isn't prohibited by law. Software licenses can have all sorts of conditions attached to them, such as use (commercial or not; educational) or a quasi-demographic (are a student at UX, are employed by Z; reside in Y). "Mega-corporation" is not at all defined, so you would need to specify what it means to be a "mega-corporation" (is it defined in terms of assets, or income, and what is the magic number that is not to be crossed). What do you mean by "corporation"? Your license might not achieve what you intended it to achieve, if you don't think about ways to legally get around the restriction (can a mega-corporation have an employee incorporate your code into a product, as an individual, and then sell the rights to the product to the mega-corporation for $1, or for $1,000,000? If not, what part of the license says you can't). Also bear in mind that a license might be for a fixed period (a nuisance), or perpetual (the usual case), but status as a "mega-corporation" is ever-changing (Microsoft was a garage operation a few years ago; Blockbuster was a mega-corporation a few years ago). Do you want people or companies to lose their license right once they make a certain salary / income? The license would be discriminatory, but not all forms of discrimination are illegal – I don't think this would actually run afoul of any anti-discrimination laws. | 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 license the use of your IP only for certain uses, for example (most commonly) "non-commercial". The general template of permission is "You have permission to ___ as long as you ___". What the user is permitted to do, in your scheme, is something along the lines of "only distribute the output in this manner", or "not distribute code developed with this tool anywhere else". It's up to you to prove that someone violated that condition, if they did. | 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. | 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. | Strictly speaking, yes, Microsoft owns the copyright for all that stuff. But they grant users a license. So it's a matter of knowing what they let us do with it. I grabbed the EULA for Excel 2013. You'll want to check your version. My reading of this is that you can do the thing that you want to do. M. ADDITIONAL LICENSING REQUIREMENTS AND/OR USE RIGHTS ... Media Elements. Microsoft grants you a license to copy, distribute, perform and display media elements (images, clip art, animations, sounds, music, video clips, templates and other forms of content) included with the software in projects and documents, except that you may not: (i) sell, license or distribute copies of any media elements by themselves or as a product if the primary value of the product is the media elements; (ii) grant your customers rights to further license or distribute the media elements; (iii) license or distribute for commercial purposes media elements that include the representation of identifiable individuals, governments, logos, trademarks, or emblems or use these types of images in ways that could imply an endorsement or association with your product, entity or activity; or (iv) create obscene or scandalous works using the media elements. Other media elements, which are accessible on Office.com or on other websites through features of the software, are governed by the terms on those websites. | If you can accurately describe in one license what constitutes the conditions where you wish to let users freely copy the software, and forbid any other uses, then you can also offer a second license that allows specified commercial uses with a second license. Basically, it reduces to being clear (to yourself and to the world) on what you mean by "service", and what you want to allow vs. prohibit. That SSPL has a section on "Offering the program as a service", though it does not prohibit it, it just requires the user to make the source code available for free. You could rewrite that section, and then hire a lawyer to give an opinion as to whether your re-write does what you think it does. Pay attention to the fact that you are interested in restrictions on "cloud servers" but the SSPL permissions are broader. | You are correct that it is quite expensive to patent something in U.S. law. Under U.S. patent law, once an idea is publicly published, if no one else has a patent application for the same idea that is pending, the idea enters the public domain and no one can obtain a patent of that idea. The publication become "prior art" with respect to any future patent application which cannot be protected by patent law. Of course, if you publish an invention which you discovered independently, that someone else already has a patent application pending for that will be approved the following week, the fact that you published it after the patent was applied for doesn't prevent the person with the pending patent application from having it approved. The term "invention" rather than "idea" is what I will use for the remainder of this answer, because there are many ideas which may not be patented, while the lion's share of patentable ideas are appropriately described as "inventions." But, understand that as used in this answer, the term "invention" is being used to refer to the concepts and ideas necessary to make the invention, and not to a particular instance of a product made using those concepts and ideas. When an invention is in the public domain, anyone can utilize the invention free of charge without a license. People who use the invention are not even required to acknowledge that you invented or discovered it. An invention is also not eligible to be patented if more than a year has elapsed since the first sale of a product using it. But, in that case, the invention can still be protected as a trade secret until it is voluntarily disclosed in some fashion to someone who is not subject to a non-disclosure agreement. (I say voluntary, because the fact that, for example, an unauthorized corporate spy sees the trade secret doesn't end the status of the invention as a trade secret.) Some inventions, are effectively publicly disclosed and published the moment that anyone looks at it closely. The patentable element of other inventions are invisible to an end user, or to observer of an end user. For example, if the invention involves something in the interior of a device, or the invention involves something not visible to the naked eye (e.g. a process for synthesizing an industrial chemical from other chemicals where the chemical formula of the ingredients and end result can't be determined without a microscope or analytical chemistry tests), merely showing someone a product made using the invention will not put it in the public domain. It is generally legal to reverse engineer or independently come up with an invention which is merely a trade secret. It is not legal to use a patented invention or process, even if it is not directly copied and is instead reverse engineered or independently discovered, during the lifetime of the patent. There is no straightforward way to put an invention into the public domain while retaining any right to acknowledgement that you invented it or otherwise exercise control through a licensing agreement without patenting it. |
Clarification on Amendment XIV Amendment XIV says: But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. What does it mean? A State can abridge the right to vote of persons 21 years of age or older except in case of rebellion or any other crime? It seems logical it would be the contrary: irt could not abridge the right to vote except for rebellion or any other crime | It says if some portion of the electorate is deprived of the right to vote then the state looses an equal proportion of its representation in Congress (and therefore electoral college votes). There is an exception "rebellion, or other crime". So if a state disenfranchises X% of the population for rebellion or crime they do not lose X% of their representatives/electors. | The only way that a member of the House of Representatives, or a U.S. Senator can be removed from office (other than by resignation, death, or expiration of a term of office without being re-elected) is by a two-thirds vote of the chamber removing that member. The relevant provision of the United States Constitution is Article I, Section 5, Clause 2 which states: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. So, a member of the U.S. House of Representatives may be removed by a two-thirds vote of the U.S. House, and a U.S. Senator may be removed by a two-thirds vote of the U.S. Senate. This has been done five times since 1789 in the U.S. House, most recently in 2002. It has been done fifteen times since 1789 in the U.S. Senate (the most recent 14 times in 1861 and 1862 in connection with the U.S. Civil War). The case of William Blount in 1797 established the precedent that expulsion of a member by a chamber, rather than impeachment, is the proper process to remove a member of Congress. Members of Congress may not be recalled, and are not automatically removed from office upon conviction of a crime. Apart from the expulsion process, there is no way for voters or states to remove U.S. Senators not from their own state, something that doesn't make sense to be possible in the overall context of the structure of the United States government under the U.S. Constitution. Senate Rule XXIII in part provides that ``if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of the members present, a judgment of acquittal shall be entered;'' A quorum of the full Senate and not just those sworn in for the trial is required. The Senate rules in the case of an expulsion of a member are analogous. | Such an order, like all other orders and decisions, is voted on at a conference of justices. Normally all 9 are present and vote, unless one or more is recused. But if one or more happens to be absent, those present vote. A majority of those present an voting is enough for such an order. Dissents from such orders are quite unusual, but any justice may file one if s/he so elects. Reasons for such orders are not normally provided. The usual standard is that such relief is only granted if A) one party will be irreparably harmed by delay, and B) that party has a reasonable likelihood of prevailing on the merits when the matter is finally decided. Presumably a majority of the Justices did not feel that this standard was met. Beyond that, no one can say. | with the new movement by some states to require voters to have identification to vote, and the fact that no state I know of provides free government issued ID (unless you are an employee) it seems that unless a state provided its residents with free access to state-issued ID, that requiring people to go pay for ID's needed to vote would be contrary to the Twenty-Fourth Amendment. This specific issue (which is much easier to address than the general question) has been litigated, and in some cases, it has been a successful argument. It is pretty much acknowledged now that requiring a fee for all documents required in order to have ID necessary to vote violates the 24th Amendment. But, the states that enacted these requirements knew that and tried to get around it by making at least one form of voter ID free, which prevents the statutes from being facially invalid. This isn't the end of the question, however: Voter ID laws, enacted in 11 states over the past two years, require voters to show a government-issued photo ID that the state will provide for free. But while the ID is free, the documents residents need to prove their identity in order to get that ID, such as a birth certificate, are not. Now, lots of people already have documents like birth certificates that were purchased by their parents at their birth and are now available to them for free. But, that isn't always the case. This raises the question of whether there is an "as applied" violation of the 24th Amendment in the cases of someone who can't prove their entitlement to compliant voter ID without paying for it, and if so, what the proper remedy is for the violation. These issues are still being actively litigated and haven't been definitively resolved on a national basis in all circumstances. | I apologize if I'm grossly misinterpreting things here. You are grossly misinterpreting things here. Your mistakes aren't terribly uncommon, but you are completely and totally wrong in what you are suggesting. Does the above bolded part correspond to breaking any specific laws? That is, how would one show that a person engaged in insurrection or rebellion, or given comfort to enemies? The language intentionally mimics the only crime defined in the U.S. Constitution, which is treason, defined in U.S. Constitution, Article III. If this could be demonstrated by finding someone guilty of a particular law, in theory couldn't someone bring federal charges against Trump for doing so? (assuming one of his many bad faith acts like cooperating with Russian election interference, or tweeting classified information appeared to be breaking said law). None of the things you imagine could constitute treason. 'Enemy" is a term of art that means a country that the United States is actually at war with, militarily, by providing aid and comfort to the other side that aides them in waging war with the U.S. Cooperating with Russian election interference isn't treason. Inaction isn't treason. The President probably has an absolute legal right to disclose information that is classified for national security purposes. The President is immune from civil and criminal liability for his official acts while he is President. If the President, from his private funds, and not as part of his officially duties, personally paid Taliban soldiers bounties to shoot and kill American soldiers, that might be treason (since the U.S. is at war, within the meaning of the treason statute, with the Taliban). Cooperating with Russia, despite the fact that it has done so is not treason. Even then, federal prosecutors would not press these federal charges against the President while the President was in office. And, the President would be immune, in all probability, to state treason charges for conduct while in office. So the President would have to be prosecuted after leaving office. On the other hand, Section 3 of the 14th Amendment does not require a criminal conviction to be effective. The intent of Section 3 of the 14th Amendment was to deny civil rights in the post-Civil War governments of the United States by Confederate officials and military officers. In practice, Congress used the authority it was granted to remove political disabilities from all but about 500 of the hundreds of thousands or millions of people eligible for this treatment under the 14th Amendment. Couldn't this happen even if a Republican controlled senate decided not to remove him from office after being impeached? That is, even if it wouldn't cause him to be removed from office, couldn't he, separate from impeachment, be convicted of a crime while still holding office? The federal government prosecutes treason. Ultimately, the President is the one who decides whom the federal government prosecutes. So, the President as a practical matter could not be convicted of treason while still holding office, even if he committed acts which actually constitute treason, unlike anything could be plausibly alleged in this case. If he was found convicted of a crime which fit the above bolded passage (and didn't engage in some shenanigans like pardoning himself), who would keep him from taking office? (i.e. enforce the law). A future President can pardon the crime of treason by a former President. Ford pardoned Nixon of crimes that Nixon committed, and many Presidents have pardoned treason convictions at times close to the adoption of the U.S. Constitution and to the adoption of the 14th Amendment. But this just can't come up in this case. You'd need a treason to have been committed before someone was elected. | It is quite likely that a constitutional amendment was (and is) not needed to ban alcohol. For example, if the Controlled Substances Act is constitutional (and I have no reason to believe it isn't) then alcohol could be added to it tomorrow and it could be removed the day after tomorrow. Right there is the reason that you choose to use a constitutional amendment - it is as hard to reverse as it was to enact; it needs another constitutional ammendment. | Note the following argument: the landmark 1819 case of McCulloch v. Maryland, which ruled that state officials cannot obstruct “the measures of a government [the federal government] created by others as well as themselves.” “In other words,” Kalt and Amar summarize, “a single state cannot use its power to derail the functioning of the United States.” (Amar is a Yale constitutional law professor, Kalt, his student) On the other hand, you have the argument by a Hofstra constitutional law professor that the 25th amendment can be applied when the President is occupied with a criminal case, ergo, the functioning of the United States can be carried on unimpared. At the end-of-the-day there is no absolute answer as it is still being argued academically and has never been specifically settled by the courts. | First of all, there is a distinction between being impeached and being convicted. Trump was impeached when the House voted to adopt an Article of Impeachment. That happened while he was still in office. He will not be convicted until the Senate votes to convict him by a 2/3rds vote, if it ever does. In the case of Nixon, the House had not yet voted to adopt Articles of Impeachment when he resigned. They had been introduced and debated, but not yet finally approved. Moreover, we don't know what would have happened if the House had proceeded to pass such articles after Nixon had resigned. The House of that time did not choose to proceed. There was no court ruling saying that they could not do so. There are some precedents saying that the Senate can proceed with a trial after an official resigns or is expelled after impeachment. None of these are at all recent, none are clear cut, none involved an official whose term had ended, none involved a President, and none that I am aware of led to a conviction. And this issue has never been tested in a Federal court. Specifically, there is the case of William Belknap. Belknap was Secretary of War under US President Grant. He was accused of improperly profiting from military contracts. The House started impeachment proceedings. Grant interviewed Belknap, who confessed to Grant and resigned on the spot. The house none the less pass five articles of impeachment after Belknap resigned. When the Senate took up the case, there was a motion to dismiss on the ground that the Senate did not have jurisdiction because of Belknap's resignation. By a vote of 37–29 the Senate held that it had jurisdiction and that a trial should proceed. The vote to convict Belknap was 35 for conviction, 25 against it. This was five votes short of the required 2/3rds to convict. Most of the Senators voting against conviction were on record as doing so because they did not agree that the Senate had jurisdiction. Thus a majority vote of the Senate held in that case that such a trial was proper, but less than 2/3rds. (Most also indicted that they thought the charges true.) There was also the case of William Blount. Blount, a Senator, was impeached by the House in 1798. (In fact this was the first impeachment ever under the US Constitution.) The Senate voted to expel him. When the articles of impeachment came up in 1799, the Senate voted to dismiss the impeachment, on the ground that the impeachment process did not extend to members of the Senate, but not on the grounds that the expulsion rendered the proceedings moot. Should Trump be convicted by the Senate (which now seems unlikely) he might bring a court case claiming that such a conviction was unconstitutional. There is no knowing how a court would handle such a case. And if Trump is not convicted, no such case will be brought this time, either. This Washington Post opinion piece by two Constitutional scholars claims that such a trial would be constitutionally proper. It also claims that it would not have been proper had the vote to adopt articles of impeachment occurred after Trump had left office. Others have taken different positions. Whether a Senate trial of an impeachment is constitutional after the person impeached has left office is a hotly debated question at the moment. There has never been a court ruling on the point, and neither of the precedents is of a situation quite matching the current impeachment of Trump. No court has ruled on the matter. The Senate did not vote for a motion to dismiss the impeachment on those grounds, although if every senator who voted for the motion voted to acquit, Trump would not be convicted. From the comments I wish that any downvoters would leave a comment indicting what thy think is wring with this answer. In the absence of a comment, I cannot improve the answer, others cannot use the reasons to write better answers, and readers have no idea why someone objects to the answer. Such a downvote seems pointless. I have updated this answer with a discussion of the Blount and Belknap precedents. In neither case did the Senate actually vote to dismiss the articles because the accused was no longer in office, although that seems to be a major reason why 25 senators voted against convicting Belknap. |
Contradicting laws If one law is valid in one jurisdiction say country A Wich says you must use digital currency on Sundays and another law opposing that law is there in another jurdiction say country B which say you must not use digital currency on Sundays. A person sitting in one legislation has accepted that the laws of the other legislation applies to him via a contract ( many contracts say "you subject yourself to the exclusive jurisdiction of the court of country B") or those laws apply because he trades (does business which involves a digital currency) in those countries.What should he do use or not use digital currency on sundays? | What should he do use or not use digital currency on sundays? If I understand correctly, you are asking about a scenario where the parties agree that the governing law will be that of jurisdiction B notwithstanding that the contract, or the relevant part thereof, will be performed in jurisdiction A. If A and B were [in] different countries, the issue could depend on what (if any) international treaties binding both countries provide regarding a conflict of laws. Absent any realistic specifics (enasia and eukaria are not realistic), let's assume that A means the U.S. or is some jurisdiction in the U.S. The contractually chosen law (jurisdiction B) would apply unless doing so contravenes policy restrictions of the jurisdiction where the contract is performed (jurisdiction A). Those policy restrictions could be public policy, legislation, or legislative intent that can be inferred from jurisdiction A's laws. For instance, see Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 937 (9th Cir. 2011): The law of the state chosen by the parties ... will be applied ... unless ... application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state[.] (citing Restatement (Second) of Conflict of Laws at § 187(b)). Note that discrepancies between A's law and B's law do not necessarily result in a material detriment to A's policy, and it is unclear from your post whether refraining from using digital currency on Sundays would be such case. One would need to ascertain A's public policy and/or legislative intent (if the relevant legislation has been enacted). | Is Crypto the same as any foreign currency? No. Crypto is generally treated as a commodity and capital asset, like gold, and not like a currency, under U.S. tax law. Other jurisdictions vary in how they treat cryptocurrency legally and for tax purposes. Bitcoin (unlike other cryptocurrencies) is also regulated on a non-tax basis as a commodity by the Commodity Futures Trading Commission. Other cryptocurrencies are regulated in the U.S. as securities by the Securities and Exchange Commission. Why not regulate it as a currency and not a security? Cyptocurrencies are not very much like currencies which is why they are not regulated in that way. The basis for treating it more like a security and less like a foreign currency for securities fraud/disclosure purposes is that it is a better fit to securities law which is designed for more varied legal arrangements than foreign currency laws. Foreign currencies are backed by the full faith and credit of sovereign countries (which are non-profit entities). Also, foreign currencies are transparently based upon laws that are almost always a matter of public record and relatively straightforward. And, of course, banks and money changing firms trading in foreign currencies are subject to significant tax and financial regulation of their own, although not as securities. In contrast, like other securities, cryptocurrencies are private creatures of contract created by entities with shareholders which do not have uniform legal properties. New "coins" can be created in different ways in different crypto currencies, and the relationship between the cryptocurrency to the non-crypto financial markets varies. Securities-like disclosures are necessary for members of the public dealing with it to understand the risks, benefits, and mechanics of the cryptocurrency in question. The U.S. Securities And Exchange position and its basis is suggested by the ABC News story linked in the question, which states: Coinbase has been targeted by U.S. regulators in a new lawsuit Tuesday that alleges the cryptocurrency platform is operating as an unregistered securities platform and brokerage service. The lawsuit from the Securities and Exchange Commission comes only a day after it filed charges against Binance, the world's largest crypto exchange, and its founder Changpeng Zhao are accused of misusing investor funds, operating as an unregistered exchange and violating a slew of U.S. securities laws. Coinbase shares plunged nearly 15% early Tuesday. In its complaint, the SEC said Coinbase made billions acting as the middle man for cryptocurrency buyers and sellers but did not give investors lawful protections while acting as a broker. “Coinbase has for years defied the regulatory structures and evaded the disclosure requirements that Congress and the SEC have constructed for the protection of the national securities markets and investors,” the SEC said in its complaint, which was filed in U.S. District Court for the Southern District of New York. It seeks injunctive relief, disgorgement of ill-gotten gains plus interest, penalties, and other equitable relief. | Is it legal to redefine a term against common sense in a contract? Generally speaking, yes. What matters is that the contract be clear enough for the parties to be aware of the terms and conditions to which they are committing. Both of the scenarios you outline seem lawful. They are binding to the extent that the definitions & language therein duly inform the parties of the substance of the contract. Definitions in a contract are most pertinent where the meaning of a term is intended to supersede and replace the commonplace meaning thereof. A contract would become null and void if the substance of that contract contravenes legislation. If legislation outlaws not only the effect of a clause but also its meaning, then the [un-]lawfulness of that clause is not altered simply by crafting definitions of terms. In other words, laws or legislative intent cannot be elluded by relabeling concepts in a contract. Whenever lawful, the attempt to trick a party with tactics (such as the use of uppercase you mention) is likely to be voidable by that party. The rationale is the same: The draftsman's attempt to confuse the user contravenes the contract law tenet that the parties knowingly enter the contract at issue. Notice that in the preceding paragraph I wrote "whenever lawful" rather than "although lawful". The reason for that choice is that, in some contexts, the draftsman's tricky attempts might constitute a deceptive practice and thus be in violation of the law (for instance, consumer protection laws). | Is A or B subject to Canadian employment law? Canada and the relevant province(s) will decide in their courts if Canadian or US law applies. The USA and the relevant state(s) will decide in their courts if Canadian or US law applies. It would be open to the employee to bring an action in any relevant court; the court will then decide what law applies and if they have jurisdiction - that is part of what sovereignty means! A Canadian court can decide a matter using US law and vice-versa. Things that the court would take into consideration are if the company did business (outside this single arrangement) in Canada or was US exclusive, the number of other trans-national interns, if the arrangement was seen as a device for avoiding employment obligations in either jurisdiction. If one is subject to Canadian law then they both are. Will either party get into trouble with the Canadian government? Assuming that the arrangement is subject to Canadian law then the company would be obliged to pay wages and may be subject to fines for not having done so. If so, what enforcement (and/or punishment) mechanisms does the Canadian government have at their disposal to enforce their employment laws against A or B? B - nothing; they have not broken the law. A - an order to pay wages and fines. Enforcement may require a judgement in a US court; either by bringing the case in one the first instance or applying to have a Canadian judgement given effect in the US. Edit The OP has added the proviso that the document states that it subject to US law and jurisdiction. If it just says that, it is prima facie invalid - a contract cannot exclude the jurisdiction of any court and an attempt to do so renders it unlawful. However, if it said that it was subject to the non-exclusive jurisdiction and law of, say, Wisconsin, then a Canadian court would consider the parties intent and the relevant Canadian national and provincial law and might decide that the proper forum is a Wisconsin court and refuse to hear the complaint. Things they will consider are that there will be Canadian and provincial laws that cannot be excluded by contract, the hardship changing the forum will have on the plaintiff or defendant, if the result (assuming the facts are proven) would be demonstrably different in a US vs. a Canadian court etc. | The interpretation of state rules of civil procedure is a matter purely for state courts. Whether a state procedural rule (or even substantive approaches to jurisdiction) violates federal law, including the U.S. Constitution, is a question of federal law, but state courts are still competent to answer such questions that arise in the process of state litigation, subject only to precedent from the Supreme Court of the United States. I may be starting to just repeat things now, but even if the legal issue you're interested in (the extent to which trial courts are divested of jurisdiction during non-frivilous interlocutory appeals in matters controlled by the FAA) is substantive or jurisdictional rather than procedural, Federal circuits do not bind state courts. However, the Supreme Court of the United States can provide binding prcedent on federal law that state courts must apply. I could see the reasons in Coinbase being written broadly enough to apply to both state and federal proceedings. | Why is a business allowed to refuse a customer? Because also freedom of contract is a right. Except for discrimination on the basis of protected categories, a person or entity is entitled to discretion on whether or with whom to do business and enter contracts. The last sentence in your post reflects a misconception of "completely different set of values and laws" between the USA and members of the EU. Clearly there are many differences, but a comparison of the Wikipedia link you posted and, for instance, 42 U.S.C. § 2000e-2 reflects an overlap of protected categories in the laws of the Netherlands and of the US, such as religion, sex, race, or national origin/nationality. One would need persuasive evidence to support a finding of unlawful discrimination in the two examples you have experienced. Assuming the bank responded to your GDPR inquiry truthfully, the bank's refusal to open an account might have stemmed from profiling or decision-making that (1) does not precisely require specific data about you, and/or (2) uses information the bank does not need to log for purposes of compliance with the GDPR. Note that the GDPR does not outlaw algorithmic decision-making. Since legislation in the EU (as in the US) portrays an approach of market economy, both bank and landlord are entitled to made decisions on the basis of their inner policies for risk management. The policies might be unclear to you, but that does not necessarily mean they contravene principles of equal opportunity. | Because disputes are expensive, time-consuming and generally not fun An ambiguous term is a dispute waiting to happen. Far better to resolve the ambiguity and correctly allocate (and price) the risk at the start of a contract when nothing is at stake then have that term be at the centre of a dispute with $10 million on the table that both parties think is theirs. At best, a dispute strains the relationship, at worst, it involves time and costs putting the matter before an arbitrator or a judge and hope the resolve the ambiguity your way. I prefer to play roulette at a casino not a courtroom. Contra preferentum is unlikely to be a successful argument in any form of non-determinative dispute resolution - essentially the proffering party is never going to agree that it applies. Further, contra preferentum is a last-resort resolution mechanism. Maybe what you read as ambiguous is actually clear. Or clear in context, or clear when industry norms are considered or when past dealing or current dealings between the parties are considered. Relying on it is a real long shot. Also, almost all B2B contracts explicitly exclude contra preferentum as a method of resolving ambiguous terms. | A contract that tells one party or another to do an illegal thing is void ab initio: courts will not recognize it or give force to it. A contract which doesnt explicitly tell either party to do something illegal but if during the course of fulfilling either party's end of the bargain they commit an illegal act it is up to the courts discretion what happens, whether to find the contract void or to maintain the contract (its a matter of public policy whether they allow the contract to continue existing, or if the contract was such that illegal acts were expected to be commited then the court will likely remder it void) Either way, you cannot indemnify someone for committing an illegal act. |
Michael Jackson trial and the constitutionality of gag orders In this page, Wikipedia says that in the Michael Jackson 2005 trial (People v. Jackson) the judge: put a gag order on both sides Erwin Chemerinsky says (link, at the time of 1:53:37) that gag orders are unconstitutional. Which way is which? Was the injunction the judge released in the Michael Jackson trial unconstitutional? If so, why nobody challenged it? | The two statements are not contradictory. A court may impose a gag order on the parties to legal proceedings, as in the Michael Jackson trial, but it may not impose a gag order on the press that is covering the proceedings, which is what Chemerinsky is discussing. | If no one objects to a leading question, then the judge does nothing. A judge does not generally pro-actively police the rules of evidence at trial. Also, there are circumstances when a judge has discretion to allow a leading question even when it wouldn't ordinarily be allowed to move the trial along on largely undisputed points or to allow in inarticulate witness to testify. The exception to judicial passivity in the absence of an objection at trial is "plain error" that is not "harmless error", which a judge has a duty to prevent or address even if no objection is raised by a party. But, offering a leading question when one is not allowed by the rules of evidence almost never constitutes plain error, and would almost always be considered "harmless error" even if it was objected to and the judge ruled incorrectly, unless the use of improper leading questions was pervasive and there was a contemporaneous objection by counsel. For example, allowing a prospective juror to serve as a juror, despite that juror saying in the jury selection process that he can't be impartial because the defendant committed adultery with his spouse, because neither the prosecution or the defense attorney moves to strike the juror for cause, rather than striking that juror for cause of the court's own accord, is the kind of conduct that would often be considered "plain error" that is not "harmless error." | The relevant statute, 28 USC 455 simply states what shall be, and does not suggest that the law could be enforced by any particular means. There have been cases where there was a suggestion of a hint of impropriety at SCOTUS and yet things proceeded. In Laird v. Tatum, 408 U.S. 1 Rehnquist did not recuse himself despite being a White House lawyer and having expressed an opinion on the legality of certain arrests, and that was the end of that matter. | A party can ask a judge to recuse at the outset of a case for bias or other reasons (e.g. a family connection to a party). Generally, a judge rules on that motion personally and it is an interlocutory motion not subject to appeal except by extraordinary writ (or the equivalent) to the state supreme court. It is not generally proper to do so during a trial. Moreover, one jeopardy has attached in a criminal trial (which happens when the jury is sworn) if the trial ends prior to a jury verdict for reasons other than those attributable to the defendant, the defendant cannot be tried again on those charges and is functionally acquitted. There are probably some arguable exceptions to this rule in extraordinary circumstances that are not the fault of either party (e.g. if a meteor hits courthouse and kills the judge and some jurors mid-trial, or if it is revealed that the judge committed the crime for which the defendant is being tried). But the threshold for exceptions to the general rule is very high. | When it is a mistake of memory, and not intentional (as this question is asking), there are no clear standards, and it is largely up to prosecutorial discretion. This means that whatever factors affect prosecutorial discretion (such as the prosecutor knowing who they have to work with on other days) can become significant in the determination. A prosecutor who announced this decision also specifically noted that it's up to the prosecutor to decide each case separately, with no guidance on fact patterns that could influence the decision either way. The Washington Post Magazine covered this question somewhat in depth several years ago, arriving at that conclusion. This was a surprise to me, but the article seems like a good resource on this - the question turns out to be more interesting and less resolved than it first appeared to be. | A witness who disobeys a court order has automatically broken the law. Indeed, this is the most fundamental of laws; you can't decide "If I turn up to the hearing I may be punished for my crime; but not attending isn't against the law, so goodbye." A witness who goes out of the jurisdiction cannot, of course, be punished while there (though when he returns he may have to explain why he chose to leave having been warned that he must attend or face penalties- that is the meaning of sub poena). But your assumption that anybody who fails to attend probably had a good reason betrays a fundamental, though common, misunderstanding. A court has determined that your evidence is necessary for justice to be done. There is therefore no good reason not to attend. It may well be that a doctor would prefer that you did not go to court that day, and if you apply to the court it may be possible to find some arrangement. But you are not allowed to decide 'my convenience is more important than discovering whether the defendant should go to jail or not". Civilised countries have people who are empowered to make that decision; they are called judges, and the decision has been made. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | "Allowed" is not an applicable concept, since the few laws regulating juror conduct pertain to corrupt behavior (such as bribery). Instead, there are standards for juror conduct that the legal profession wishes to be adhered to, and the only way that impression is conveyed to jurors is through the judge's instructions (or lack therein). It is held in Sparf and Hansen v. United States 156 U.S. 51 that In the courts of the United States, it is the duty of the jury, in criminal cases, to receive the law from the court, and to apply it as given by the court, subject to the condition that, by a general verdict, a jury of necessity determines both law and fact as compounded in the issue submitted to them in the particular case. In criminal cases, it is competent for the court to instruct the jury as to the legal presumptions arising from a given state of facts, but it may not, by a peremptory instruction, require the jury to find the accused guilty of the offense charged, nor of any offense less than that charged. One of the "technical" rights of a jury is the right to judge the law itself (jury nullification). This arises in part from the Zenger trial and similar colonial events, and (in terms of legal precedent) from a famous instruction by Jay in Georgia v. Brailsford, 3 U.S. 1: It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision. Sparf v. US however finds that a judge is under no obligation to inform jurors of that right, and jury instructions say things like "you must apply the law as I give it to you, even if you disagree with the law". For examples, instruction 101 in the California criminal instructions manual says that trials are conducted in open court with the parties presenting evidence and the judge deciding the law that applies to the case. It is unfair to the parties if you receive additional information from any other source because that information may be unreliable or irrelevant and the parties will not have had the opportunity to examine and respond to it. Your verdict must be based only on the evidence presented during trial in this court and the law as I provide it to you. This is not an enforceable law, for instance if a juror (esp. an attorney) argues one way based on his version of the law, that is not a punishable offense, nor is it a punishable offense if a juror (who is an engineer) argues that some expert testimony on an engineering matter is factually wrong. Jurors are not supposed to do either thing, but there are no legal consequences if they do. Since the legal ideal is that a jury will evaluate the (allowed) testimony in court and applies the law as given by the judge, and attorneys have an ethical obligation to uphold the law, they thus have an ethical obligation to not restate the law and especially to not do so under the guise of being an attorney (who has expert knowledge of the law). This is basically an unenforceable principle. There was an instruction in California saying that: should . . . any juror refuse[] to deliberate or express[] an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation but People v. Engelman 28 cal 4th 436 nixed that instruction. That case says that jurors have no right to refuse to deliberate or to disregard the law in reaching their decision but Directing the jury immediately before deliberations begin that jurors are expected to police the reasoning and arguments of their fellow jurors during deliberations, and immediately advise the court if it appears that a fellow juror is deciding the case upon an "improper basis," may curtail or distort deliberations. This does not mean that in the rare instance that a lawyer is on a jury, he must suppress his conclusions, even when they are professionally informed. This article recounts a lawyer's experience on a jury and identifies a point of law (and how the issue was handled). In that case, the question is what to make of a statement that something is "not at issue". The non-;awyers interpreted that to mean "we aren’t supposed to award her anything for back and neck injuries". The lawyer said: I was pretty sure this was wrong. While it was true that the lawyers had said the back and neck injuries were “not at issue,” that was a phrase that I could recall uttering in court, too. When I said it, I meant that both sides agreed on a certain fact or point of law. I did not mean that the fact or point of law was not material to the case. No other juror interpreted the lawyers’ statements my way, and when we checked, we found that the jury instructions were silent on the issue. So, we wrote the judge a question. Turns out, “the lawyer” was right. The judge instructed us to consider any injury from the collision, whether it was an injury to the plaintiff’s back, to her neck, to her shoulder, or elsewhere. The lesson for attorneys: explain to the jury exactly what you mean. Don’t assume they understand your shorthand terms, like “not at issue.” In other words, the judge still determines what the law is, though in this case it looks like it took the expert knowledge of an attorney to figure out that the jury needed to ask the judge what "not at issue" means. |
To what extent can you be cross examined for "showing," rather than "telling" about a crime? My question was inspired by this question. Suppose I see some "suspicious" activity on a New York City subway. I film this activity and report it to the police. The police decide on the basis of the film that someone was committing a robbery. They identify and arrest a suspect, identify and present a victim, etc. I am introduced in court as the person who took the film. I take the stand and testify that I did so. I then disclaim knowledge of any actual crime, and claim only that the activity looked "suspicious," and I took it and handed the film to the police. I would expect the defense to cross examine me about the film. "Where did you take this film? When did you take this film? At what angles/lighting, etc. did you take this film? How long have you had the camera? How much experience have you had operating this or similar cameras? How did you operate this camera?" etc. But suppose the defense goes into other areas: "Do you feel that a crime has been committed? Why did you go to the police? Do you know if the defendant is the same person as in the film? How about the victim? (I did not introduce any of these topics on direct examination.") What then happens if I say, "I don't know whether a crime has been committed? or "I don't know whether the defendant is the same person as in the film?." etc. and, "all I can say is that I took this film and the film speaks for itself." and "After receiving the film, the police acted independently of me, because I told them nothing else." Is the defense allowed to question me on those grounds? Will my answers stand up if they are true? | The situation you describe is extremely unlikely First, you will have been required to give a statement to the police who would have asked you most or all of the questions that you suggest before anyone gets anywhere near a courtroom and likely before any arrest has been made. That statement will be part of your evidence in chief. As in "Is this your statement?" "Yes". "Is this your video recording?" "Yes". After that, your evidence in chief is pretty much done. A witness of fact (rules for expert witnesses are different) can only testify as to what they personally sensed and what their state of mind was. So questions about what you saw, heard, tasted etc. are all perfectly legitimate as are questions about what you thought or felt. You are required to answer these questions honestly - if that means "I don't know" then say "I don't know". All of the hypothetical questions look fine but as I said, they will all have answers in your police statement. The only one that's off-limits is ""Do you feel that a crime has been committed?" - nobody knows if a crime has been committed; that's why we're having a trial. | This is normal. It only seems imbalanced because only the prosecutor has been able to call witnesses so far. Under Minnesota Rule of Evidence 611: Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. At this point, only the prosecution has put on its witnesses, so it hasn't had an opportunity cross examine anyone, and the defense has been able to lead because it has only been able to cross examine. Were the prosecutor to call the defendant's wife or mother or something like that, he would probably be permitted to use leading questions. And when the defense puts on its case, the roles will reverse: the defense attorneys will have to use open-ended questioning for any witness he calls, and the prosecutor will be able to use leading questions. | There is a big difference between knowing something and proving it. A lawyer who knows a client is guilty can take steps to prevent the state from proving guilt. (E.g., motion to exclude evidence, cross examining witnesses.) The belief that a client has committed a crime does not necessarily mean one knows what specific crime was committed. Is a killing Murder 1, Murder 2, or manslaughter? There are defenses even when an act may be a crime. E.g., self defense, insanity, justifiable. Lawyers are not permitted to assist in perjury. E.g., allow the client to testify to something he knows is false. | The broader question is a bit tricky and has many dimensions. It is probably easiest to go over some of the ground rules. There are probably other particular issues that could come up, but those are the only ones that occurred to me at the moment. Caveats and Disclaimers Also, it is worth noting that the considerations that apply are different in criminal v. non-criminal trials, in the U.S. v. other countries, U.S. state courts v. federal courts, in jury trials v. bench trials, and in the civilian v. military justice systems ("A Few Good Men" is a quasi-criminal U.S. court-martial case under the military justice system without a true jury.) At least to start with, I will limit my answer to civilian criminal jury trials in the United Sates. At least in practice and interpretation, the United States has lower expectations of lawyers at trial than in many other common law countries. Prosecutors have higher duties to not be deceptive than criminal defense lawyers. There is a greater duty for defendants to disclose information that could be harmful to their case in civil cases (especially in state courts) than in criminal cases. The ethical duties of lawyers regarding candor in bench trials are more complicated because there are some facts that in a jury trial, a judge is allowed to know and consider when making rulings in the case, but a jury is not allowed to know. Military justice is its own thing with far less formal rules of procedure and deeply different basic assumptions than in trials in civilian courts. For example, in a military trial, the prosecutor, the defense lawyer, the defendants and the judges are all soldiers who owe heightened duties to the same government and the military mission, relative to participants in a trial in a civilian court, that can take priority over the duties a lawyer owes to his client, or duties of judges to respect due process. A prosecutor is not permitted to advance frivolous and groundless positions for any reason. Some Notable Rules Opening Arguments and Offers Of Proof You are not allowed in an opening argument to a jury in a civilian criminal trial, or in an offer of proof to a judge in support of the validity of questions you would like to ask, to state that you will present evidence later in the case that you do not believe in good faith that you will introduce. You are not required, however, to identify all evidence that you plan to introduce in your opening statement. But, if you say you will offer up evidence later in the case believing that you will introduce it, and then decide later on that you don't need to and want to offer up that evidence after all, you aren't required to do so. For example, in a case that I tried not so long ago, both sides had expert witnesses. The other side's expert witness testified first and we got him to say everything that we wanted our expert witness to say in cross-examination. We were also worried that our expert witness might say something that would hurt our case because he understood some complicated facts in the case better than the other side's expert witness who didn't realize that those facts were an issue. So, when it was my turn to present the expert witness (who was supposed to have bee the last witness in the case) that we'd said in opening arguments would testify for several hours, we told the court, "we planned on calling Mr. So and So as an expert witness, but have concluded that his testimony would be cumulative so we conclude our case now," after which the Court immediately moved on to closing arguments which we knew that we'd have to present right away, but the other side expected to have several more hours to think about while our last expert witness testified consistently with his previously disclosed expert witness report for a couple of hours. What the lawyer did in "A Few Good Men" (which was in substance an "offer of proof" to provide authority for him to ask certain questions) came close to the line of what is permissible in terms of saying that you will introduce evidence when you don't actually plan to do so, but probably didn't cross the line because he didn't say what they would testify to if called. This would be bad form, and it might undermine the lawyer's credibility with the judge not just in this case, but in the long run, but a lawyer could decide as this one did, that this downside was worth it. Statements About Lying Witnesses Neither the prosecution lawyer nor the defense lawyer is allowed to say that they know that a particular witness was lying. This is because this turns the lawyer into a witness and puts the lawyer's credibility at issue. This is also because a statement like that can be used to signal to the jury that the lawyer knows something based upon evidence that the jury didn't hear (perhaps because they weren't allowed to hear it) that they should consider when weighing credibility. Numerous felony convictions are overturned every year because a prosecutor told a jury that a witness was lying. These statements are prohibited without regard to whether they are true, false or debatable. Of course, a lawyer can say, "as you evaluate the credibility of the first witness you heard you should consider the fact that he will avoid a life in prison term and receive a $1,000,000 life insurance policy payout and that the first witness is blind and yet told you the exact color and texture of the sweater that the defendant was wearing even though the first witness doesn't claim to have ever touched that sweater." The lawyer simply isn't allowed to connect the dots and conclude for the jury that therefore, the first witness is lying. Arguments Based Upon False Inferences As a general rule, in a civilian criminal jury trial, a defense lawyer is allowed to ask questions in cross-examination and make arguments in closing arguments that are based upon inferences from the evidence that was presented that the defense attorney knows to be false, so long as the factual testimony presented is not known to be false. For example, the defense lawyer could argue in closing arguments, "the prosecution did not rule out the possibility that Fred Heinz was present at the murder scene, so they haven't ruled out the possibility that Fred Heinz rather than my client committed the murder," even if the defense lawyer happens to know that Fred Heinz was actually on vacation in another country at the time of the murder. Similarly, a defense lawyer could ask a witness on cross-examination, "Isn't it true that you hide the murder weapon at the requests of your boyfriend and didn't see my client at all that evening?", even if the defense lawyer knows that his client's girlfriend asked the witness to hide the murder weapon and not the witness's boyfriend. The witness of course, would simply answer "no, that isn't true.", but the defense lawyer's question would put the possibility into the heads of the jurors, possibly leading them astray. (The second example is a little more complicated than that, because the defense lawyer's question is only allowed if there is some foundation established in earlier evidence to show that the boyfriend asked the witness to hide the murder weapon. If not, the prosecutor could object to the question and the judge wouldn't allow the witness to answer it. Whether a defense lawyer can ethically ask a question knowing that it violates the rules of evidence hoping that the prosecution won't object to it and knowing that even if the question is overruled by the judge that it will give the jurors a hint about a possibility that is actually known by the defense lawyer to be false, is somewhat of a gray area.) Also, a lawyer is absolutely allowed to ask cross-examination questions not knowing what the answer will be, even though that is risky and usually considered to be bad trial practice, and a lawyer is allowed to ask questions that limit a witness to telling an incomplete story that sounds bad, even though the whole story, if told, would not sound so bad, and even if the lawyer knows that the other side won't get an opportunity to tell the whole story for some reason later on. For example, suppose that the lawyer asks a witness, "you just told the jury that you saw this fight happen?" to which he responds, "yes." "And, you just have normal vision don't you?" "Yes." "But, isn't it true that you were three miles away from the scene of the fight when it happened." "Yes. Now that sounds like it really discredits that witnesses testimony, even if the lawyer asking the question and the witness and the prosecutor and the judge all know that the witness saw the fight occur though binoculars from the top of the Empire State Building. Normally, this could get corrected with rebuttal testimony. But, suppose that the defense lawyer offering this cross-examination asked the questions in a dull voice like it was a tedious detail and noticed that the prosecutor had been distracted looking at texts on his phone while the defendant was cross-examining the witness and so didn't notice this line of questioning, and therefore was likely to say, "no further questions, your honor" when the judge asked him if he had any rebuttal testimony he'd like to offer from this witness. In that situation, the defense lawyer hasn't acted improperly in causing the jury to make a misleading inference from the testimony, and the defense lawyer is allowed in closing arguments to heavily emphasize that the key prosecution witness who says he saw the fight admits that he was three miles away when it happened, knowing that this argument is disingenuous. Ultimately, a defense lawyer's job is to get the best result possible for their client without violating any relevant ethical rules which are specifically and intentionally relaxed for them relative to other lawyers in some respects regarding advancing frivolous and groundless positions. A prosecutor, in contrast, has a duty to advance only claims that the prosecutor believes to be supported by probable cause, to not hide exculpatory evidence, and to seek justice rather than having a duty to try to convict and get a maximum sentence without regard to guilt or innocence (in principle even if not all prosecutors act this way). Testimony And Evidence Know To Be Intentionally False A lawyer is not permitted to let a witness or his client provide testimony to the court that he knows to be perjured. If his witness starts to commit perjury on the stand, the lawyer has to immediately stop the examination of that witness and discuss the problem with the judge. In many circumstances, the lawyer must correct a knowingly false statement that his witness has provided to the court even if he only learns that the statement was knowingly false after that witness is off the stand if the lawyer learns of this before the jury renders its verdict (or for that matter within the time allowed for post-trial motions). Gray areas come in when the lawyer doesn't know that the testimony is true or false, and knows that someone is under oath, but also knows that they aren't a very credible person and that the person sometimes lies in important situations, and indeed avoids knowing the truth. Similarly, gray areas come into play when the lawyer knows that the witness is likely to be mistaken in the testimony that is offered, but knows that the witness is sincerely doing his best to tell the truth on the stand as he understands it to be. Likewise, a lawyer is not allowed to introduce evidence that he knows to be doctored or forged (i.e. claiming that it is authentic), unless the lawyer explains in the course of introducing the evidence that it is a doctored or forged document and is offering it to show that somebody doctored or forged the document. And, if the lawyer later discovers that the document was doctored or forged before the jury renders its verdict (or within the time allowed for post-trial motions), the lawyer has to tell the court that this happened. Pre-Trial Disclosures While the prosecution has a duty to disclose all exculpatory evidence in its possession prior to a trial in a civilian criminal case (something called Brady disclosures), the defense's duty to disclose what evidence it will offer, or what evidence it knows exists, is extremely narrow. There are a couple of kinds of defense strategies (like an alibi defense or a self-defense defense or certain disputes regarding expert testimony) which the defense must disclose that it plans to use at trial, prior to the trial. But, the defense has much more latitude to call surprise witnesses and to introduce surprise evidence at trial than the prosecution does. | In addition to compelling a store to produce evidence such as video footage, via a search warrant as described by bdb484, police can request access to information in the possession of such information. The store may voluntarily comply with the request, or not. Especially in the case of online transactions, there may be a privacy guarantee that information about a customer's transaction will not be revealed to a third party unless required by law (ergo, a warrant), but security camera recordings are not protected by such guarantees. | It's really the other way around: film crews can legally travel with the police. This is very similar or identical to what you saw on YouTube. From http://blogs.findlaw.com/celebrity_justice/2014/04/cops-and-suspects-rights-whatcha-gonna-do-when-they-record-you.html (dated 4/18/2014) "Cops" will soon begin a 10-week filming stretch in San Jose, California, for the first time in the show's 26-year history, reports the San Jose Mercury News. The "Cops" crew will hit the streets alongside San Jose's finest to provide a window into what these men and women do in America's 10th largest city. More from that link: When the officers on "Cops" arrest most of their suspects, the circumstances leading up to the arrest are out in public. However, in order to avoid unlawfully appropriating the images of those caught on "Cops'" cameras, the crew asks the arrestees to sign a release form. The "news crew" are producers who have permission from the police to follow along. As above, they ask each suspect to sign a release after the arrest. These arrests take place in public, on public streets and right-aways, where filming of the public is legal. If the arrestee does not sign the release, their face is blurred in the resulting footage that is made public. This does not mean the producers or videographers are automatically allowed into a private residence. They need a release to go onto private property (unlike the police involved in an investigation) and as such, the resident can actually forbid the cameramen from entering the house even while the police have entered. The footage from the body cams of the police are a different story; they are public employees of the local government and are bound by the laws of the locality. A search of Google News shows that in San Fransisco, the issues of the use of body cams by police and public access to that video is an ongoing issue; some laws have been finalized, others are bound to change. Around the US, some localities at this point in time allow public access to the footage from police cams; others only after department or local governmental review; still others only on in as need basis for prosecutions. ...the cop is the only one in this situation who can command the filmers to stop. Even if the "news crew" is not a news crew and just someone from the general public, it is generally legal for the public to film the police, as long as they are not causing issues with the police and stay out of the way (re: all of the recent news regarding police shootings and the footage available on YouTube and in news sources). There is case law pertaining to that, but IANAL, so I'll let someone else outline that. But https://photographyisnotacrime.com/ is a good resource. In the US, you pretty much have no expectation of privacy while in public. | A fact cannot by itself constitute reasonable suspicion; the word "reasonable" describes not only the relationship between the fact and the possible existence of a crime, but also the officer's knowledge about the fact. The officer must not only sincerely believe the truth of the facts constituting reasonable suspicion, but must also reasonably believe it. I do not know whether a hallucinatory experience may be found reasonable for this purpose; I suspect that it would be a matter of dispute at trial. The first example is perhaps more straightforward, as there are probably a few possible explanations for the officer's failure to notice the turn signal. Still, are they reasonable? If the officer could not see the turn signals because something blocked the line of sight, it would not be reasonable for the officer to conclude that the driver had failed to use the signal. Rather, the officer has no evidence one way or the other, and absence of evidence is not evidence of absence. The question deals in hypotheticals, where we can assume that the officer is sincere. But in a trial, the jury (or judge in a bench trial) cannot do that. They will look at the evidence, including the officer's testimony, and assess the officer's credibility. They will form an opinion about whether the belief was sincere and reasonable before they look at whether the facts, as the officer believed them to be, reasonably indicated that a crime was being committed or was imminent. | Are defendants legally obliged to provide all culpatory evidence to prosecution? The question here is whether or not all evidence requested by prosecution must be provided by the defense? If the defense plans on only using the evidence of the prosecution, does the prosecution get to demand evidence the defense would rather not release? No. Usually only specific kinds of evidence related to specific kinds of claims such as alibi evidence, an insanity claim, or expert testimony must be disclosed prior to trial by a defendant in a criminal case. A defendant in a criminal case does not have to disclose evidence harmful to the defendant's case prior to trial as a general rule. Sometimes there is a requirement to disclose witnesses anticipated to be called, or exhibits to be possibly used very shortly prior to trial, but that is more the exception than the rule. Does the answer depend on the whether or not the case is criminal or civil? Yes. A plaintiff in a civil case can compel disclosure prior to trial of all evidence in the custody, control, or possession of the defendant that is relevant or is reasonably calculated to be relevant to a disputed issue identified in the complaint, answer, and other pleadings (e.g. counterclaims, replies to counterclaims, third-party complaints, cross-claims, etc.). The scope of discovery is slightly different in jurisdictions that don't follow the federal model. This can include pre-trial depositions of the parties, although a defendant can claim the 5th Amendment at the risk of being exposed to an adverse inference communicated to the jury at trial if the defendant does so. Furthermore, most jurisdictions require the pre-trial disclosure of expert testimony that will be used at trial, of exhibits that will or may be used at trial, of witnesses who will or may be called a trial, of all documents that are relevant to a disputed issue identified in the complaint, answer, and other pleadings, of all insurance coverage that could cover the claim, of all persons with knowledge of the disputed facts, and of an expected damages calculation. In the federal system, however, one need pro-actively disclose only witnesses and documents that support your case without being asked. Is there consistency on this or is it at the discretion of the judge? The rules of procedure applicable to a case govern the scope of discovery, but judges have considerable discretion to determine that requests are excessive relative to what is at stake in the case, are irrelevant, or unduly burden some other legitimate interest of the person subject to discovery. Is there punishment for non-compliance? Yes. First of all, a failure to disclose when there is a duty to do so is a ground to exclude presentation of that evidence at trial. Secondly, in civil cases, attorney fees incurred to obtain the discovery can be awarded, facts that might have been disclosed can be declared to be true as a matter of judicial sanction where there is not disclosure, claims can be dismissed, etc. The main relevant federal rule in civil cases is Federal Rule of Civil Procedure 37. It is an unlawful request that must nonetheless be followed with only a hypothetical remedy left to the defendant as is the case in most of these united states to comply with an obviously unlawful arrest that doesn't present an immediate threat to life? I don't understand this long and convoluted sentence. The part about an unlawful arrest seems divorced from the issues in the rest of the the question. It isn't clear what kind of unlawful request is involved either. |
Can someone be liable if they make someone so angry they die? Alice and Bob are having an argument on the internet about the Charlie and the Chocolate Factory adaptations- specifically which had better oompah loompahs. While Alice prefers the later ones from the Johnny Depp film, Bob very strongly likes the orange ones. The argument becomes extremely heated and a cutting remark from Alice enrages Bob. Unbeknownst to Alice, Bob had a severe heart condition and the rage sends him into cardiac arrest. He dies minutes later. When Mrs. Bob discovers him, she sees the full transcript of the debate. (i.e. for this hypothetical, all relevant facts are known and provable). Could Alice face criminal charges and/or be found liable in a civil case? Juristiction is the US, but they're in different states. | No. There could be a remote possibility if Alice knew of Bob's severe heart condition (but even then, no reasonable person would expect someone to get a heart attack out of disagreement over personal tastes however heated/cutting). But as she does not, no chances. Poor Mr and Mrs Bob. | Given that Bob has no obligation to pay anything to Charles, who has no legal duty to do anything, I don't see how Charles could have liability to Bob. If Charles wants to, he can decline to pay a reward to Bob or can pay an amount smaller than Charles hoped for as a reflection of Charles' delay. | There are a lot more differences than this, but if your teacher sums up what he/she means by that sentence. Here, specifically, in Civil Law, the decision of the courts must comply with the laws as enacted, which means there are specific statutes required to make something illegal. Common Law features Stare Decisis which basically means that if Case A is decided in one way, and Case B is a similar Case to Case B, Case B must yield the same decision for all cases in that jurisdiction and lower courts below that court. This means that while statutes (laws) can be made by a legislature, the courts can "make law" by deciding cases. For example, some States in the United States and England and Wales only recently (within the past 30 years) adopted an actual law that made murder illegal? Prior to that murder was illegal under Common Law Murder that had been based on precedence from bazillion cases before that said it's illegal. Nobody bothered to write it down in an actual law. There are several other big differences such as Inquisitorial vs. Adversarial nature of courts, how and when punishments are decided (The famous "Just following Orders" Defense was given in part because of this difference and a lack of understanding over it.), who is the trier of fact vs. who is the trier of law, but as far as what is "Law" this is a good single summation of the difference in a single sentence. But it really shouldn't be condensed to a single sentence. | They could be prosecuted in any state where there was evidence that part of the crime was committed. Realistically, either State A or State B could prosecute for conspiracy to murder as an additional charge, because the conspiracy clearly spanned more than one state, even if they can't prove where the crime was committed, although physical evidence (e.g. traces of camp sites, footprints, testimony about landmarks, evidence of poop with human DNA from the victim in it), would usually make it possible to show that some part of the crime was committed in the state. There is probably also a federal crime that could be implicated such as "murder involving flight across a state line" (hypothetical, but I'm sure that there is something similar on the books). I'm not going to address the further hypothetical as it is too bizzare and law is ultimately very context specific. Find a more plausible fact pattern, perhaps with a different crime, and ask a separate question if you want to really address the issue. | "If it were not assize-time, I would not take such language from you." (said while grabbing the handle of sword) This is a famous conditional threat where the speaker/actor was not found to express intent to do harm; perhaps better called a negative condition. This probably confuses matters but if you are to search for more answers this could be a good place to start. One of the elements of common law assault is that the threat must be able to be carried out immediately; it must be imminent. I do not have a cite for this but I recall that this means that conditional threats are excluded from assault. So calling a politician on the phone and telling them that if they do not drop out of a race you will hurt them is not assault. So, "You cut that out now or you’ll go home in an ambulance" sounds a lot like, "stop or you will get hurt." The victim has the opportunity to avoid the danger; the threat is not imminent. But the facts here are interesting because the speaker touched the victim while speaking which might mean fear of imminent was real. But they were in a crowded room in front of cameras - could the victim really feel that threat was imminent? Plus, the "you will go home" implies a future harm. Oh, and the speaker does not say "I will hurt you," maybe she was actually trying to protect the victim from someone else's actions. Like when my teacher knew someone was waiting outside the classroom to fight me and she told me, "if you go out there you will get hurt!" I would hope that a jury would consider this hard bargaining. | The distinction is a question of culpability, not just the harm caused. The law, at least in the criminal law context, is not fundamentally consequentialist in its philosophy. The end consequence of an act for which someone is at fault in some way isn't the only thing that matters in criminal law. Instead, there is basically a two dimensional grid. On one axis is the seriousness of the harm caused on the "eye for an eye" theory of proportionality between punishment and the harm caused. Thus, homicide is more serious than causing serious bodily injury or raping someone, which is more serious than causing bodily injury that is not serious or sexual in nature. Grand theft is more serious than shoplifting. It doesn't make economic sense to spend $70,000 a year to incarcerate someone for many years to prevent people from stealing $15 items, unless very extreme aspects of the person's criminal history suggest that this seemingly minor incident demonstrates a high risk of future offenses that are far more serious because it proves that a hardened criminal hasn't reformed himself or herself. On the other axis is basically a measure of how evil and malicious someone would have to be to do such a thing which is called culpability. At once extreme, first degree murder, for example, is calculated, premeditated harm to another. At the other extremes are completely non-culpable conduct (either due to lack of any fault-worthy conduct or because someone is mentally incapable in the eyes of society of engaging in culpable conduct like a baby or someone with dementia or someone having hallucinations relevant to the conduct that kills someone, ordinarily negligent conduct that kills someone, and criminally negligent conduct that kills someone. In between the extremes is conduct that is reckless or is impulsive or carried out in the heat of passion or by someone with diminished capacity. Only moderately culpable conduct is punishable only by a civil lawsuit for compensatory damages, and non-culpable conduct isn't even punishable in a civil lawsuit in the absence of special circumstances in which strict liability is imposed in lieu of proof of culpability. Less culpable conduct commands less serious sentences, and more culpable conduct commands more serious sentences. Why single out culpability? Basically, this is a crude way a predicting, based upon someone's past actions, the risk that the pose in the future. (Our evaluation of culpability is further refined and adjusted by factors related to the individual defendant and not the particular offense involved, like a criminal defendant's status as a juvenile or adult, and the individuals history of prior criminal convictions.) Conduct that constitutes first degree murder corresponds more or less to psychopathy, an incurable psychiatric condition in which someone lacks all empathy and takes selfish delight in harming others out of boredom or for personal gain. Psychopathy is a technical term that is modern abnormal psychology's closest synonym to saying that someone is unredeemable and evil, and conduct for which the death penalty is available, mostly in conduct that is most highly diagnostic of psychopathy, since the usual goal of incarceration, to return someone to the community once they are no longer an appreciably elevated threat to it, can never be achieved in the case of someone who is unredeemable and evil, because their condition is an incurable part of who they are as a person and their lack of empathy makes them incapable of emotionally distinguishing between right and wrong or feeling guilt. This intuition bears out. The more culpable an offense is, the more likely it is that the offender scores high on standardized measures of the extent to which someone displays signs of psychopathy that are exemplified in serial killers and the worst con men. Intermediate levels of liability correspond more or less to impulsivity that can turn violent (which is associated with a variety of incurable psychiatric conditions and also with the developmental states of adolescence and young adulthood and with instances of excessive intoxicant consumption, especially in men), in which someone knows what they are doing is wrong but lacks sufficient self-control to prevent themselves from acting until it is too late and they have calmed down, at least until they "age out" or or take steps to treat the symptoms of the conditions or addictions or intoxicated excesses. Their lack of self-control makes them a potential risk to others even though they empathize and feel guilt, but not like the risk associated with a psychopath who just doesn't care at all if they are doing something that violates intuitive moral codes of conduct. Negligence, i.e. inattentiveness and carelessness pose even less of a threat to the community and while it could be due to something like attention deficit disorder, could also be due to extenuating circumstances like sleep deprivation or being overwhelmed with too much at once to keep track of everything at once. Negligence harm generally isn't even momentarily malicious due to loss of control and the person who harms someone negligently will often immediately regret the harm that they caused and will try to refrain from doing so again and will try to make things right. Such a person is far less of a future threat to society, but still more of a threat than someone who doesn't harm others in the first place in any manner in which they are at fault. Who decides? Reasonable people (and even reasonable judges) can and do have differences of opinion on the relative importance of seriousness of harm and culpability in determining a sentence for a conviction of a particular course of illegal conduct. The difficulty in balancing the apples and oranges factors of seriousness of harm (which, in part, reflects a person's capacity to inflict serious harm in the future and also reflects society's judgment about how serious it is to do something with ill intent) and culpability. To insure that these factors are balanced in a predictable and fair way, we embody the weighing of those two factors in a collective legislative judgment codified in a state or national penal code, rather than a case by case decision making process by judges. The modern trend towards giving more weight to culpability. If anything, the tendency at the present is for legislative judgment to give more weight to culpability than it has in the past as social science methods in criminology have demonstrated that culpability demonstrated in criminal conduct actually carried out by a person is indeed highly predictive of that person's future dangerousness to society For example, cruelty to animals is an offense which reflects very high levels of culpability despite often involving relatively modest amounts of harm viewed in a human-centric way. But, cruelty to animals is increasingly being upgraded from a misdemeanor to a felony, because it is a very diagnostic litmus test for psychopathy in an individual and very frequently eventually escalates to causing serious harm to humans. Similarly, drunk driving when it is charged based upon a traffic stop, rather than an accident that occurred while someone was driving drunk, is a very low harm offense, just like any other traffic offense, and historically has only been a misdemeanor. But, in cases where someone is repeatedly convicted of drunk driving, the culpability is high and the conduct tends to reflect a very difficult to self-regulate addiction and substance abuse problem that is highly likely to recur and to eventually result in a high harm accident. Repeated convictions are what distinguish an incident where someone is basically just criminally negligent in driving when they should have known that they shouldn't, from the far more serious case where someone recklessly and with indifference to the well being of others drives drunk knowing full what the risk that they are exposing other people to. And because repeat drunk driving convictions are more culpable and reflect a personal character of the offender that shows a high likelihood of causing future harm to others, many states are starting to upgrade repeat drunk driving from a misdemeanor to a felony even though the actual harm from the specific incident of drunk driving that only gives rise to a traffic stop is still just as low the fifth or sixth time someone is convicted as it was the first time. Conclusion So, in sum, assigning different penalties to different levels of culpability is a way to allocate limited correctional and punishment resources in a manner proportionate to the future risk of dangerousness that the current conviction provides undeniable evidence of in a non-arbitrary manner. Indeed, most people simply internalize the notion that more culpable conduct deserves more serious punishment because it is wrong, without conceptualizing in the more theoretical abnormal psychology informed and utilitarian framework in which I have described it above to demonstrate the implicit logic and wisdom behind the gut instinct that more culpable conduct should be punished more seriously, especially when its cause is not a passing incident that is unlikely to recur. | It seems like callous behavior which leads to a foreseeable death deserves a bigger punishment than just firing of the administrator. The starting point of the analysis is that no one is legally responsible, civilly or criminally, for a suicide unless that person intended that the person who committed suicide do so, which is almost certainly not true in this case. As a matter of law, a suicide caused by merely callous behavior not intended to cause someone to commit suicide is not foreseeable. And if the only actions brought are civil, then the University would be the defendant and the actual individuals who were involved would not themselves even face any trial. This is not accurate. It would be routine to bring suit against anyone personal involved (probably both the administrator and the gay student who allegedly colluded), as well as the University, and indeed, the likelihood of a recovery against one or both of the individuals would be greater than the chance of recovery against the University. To recover against the University it would be necessary to show that the Title IX violation occurred pursuant to an officially approved policy or practice of the University, but this case seems to have at its heart, a failure to an administrator to follow a policy of the University. It might be possible to sue the University or someone involved in the process for a violation of his civil rights, but generally speaking, his death would not constitute recoverable damages in a such a suit. Also, generally speaking, a Title IX claim requires that any party held liable to have had an intent to violate someone's civil rights, rather than that the person was merely mere inept or negligent in implementation or non-implementation of a bureaucratic policy or dispute resolution procedure. This is alleged by the Plaintiff, probably in part because it has to be to prevent the case from being dismissed on the pleadings, but is quite implausible that this really happened that way, and this is difficult to prove unless there is some really hard evidence backing up the alleged collusion. Generally speaking, the fact that a hearing board comes up with a wrong conclusion after allegedly not following proper procedure, is not actionable for damages and certainly wouldn't constitute fraud. UPDATED RESPONSE TO EDIT 2: there maybe other victims, in similar situations, who are not protected by the criminal justice system if nothing of what is alleged to have transpired is deemed illegal It is a common fallacy that if something is not a crime, that it is not illegal or that there are no remedies. A civil lawsuit is a common and often appropriate remedy for all manner of wrongs, and the compensatory and injunctive remedies for civil wrongs such as a breach of contract and torts such as the intentional infliction of emotional distress are often significant. This said, as a government entity, the University of Texas and its employees are probably immune to many tort causes of action that would be available against a private party engaged in the same conduct. In this case, probably the only viable causes of action against the University of Texas itself, as opposed to the responsible individuals in a particular case, would be for breach of contract for not actually carrying out its policies as impliedly promised, and for injunctive relief under Title IX insisting on new policies that would prevent misconduct in disciplinary proceedings. Generally speaking, a criminal law remedy is less victim oriented than a civil remedy and is outside the control of the victim, which can be traumatic for a victim who would prefer not to be involuntarily dragged into the criminal justice process. The notion that settlement is not possible in the criminal justice system is likewise mostly incorrect. There is a reason why we don't handle rapes (for example) in civil courts. Criminal justice system exists to make sure that, at least in theory, those who commit heinous acts cannot buy their way out of consequences of those actions. In fact, one can bring a cause of action for a rape in a civil court. I've done it. And, the lower threshold of proof, the lack of a right to remain silent without legal consequences under the 5th Amendment, the greater focus on compensation for the victim, and the greater level of control of the victim are all good reasons to pursue this route. Many cases of rape by people able to afford to pay compensation are also cases of actionable sexual harassment. In general, criminal law is the solution that is usually resorted to not so much because the acts committed are heinous, but because the typical person who violates a law that is criminally prosecuted is judgment proof and unable to pay compensation that is even remotely proportionate to the harm done, so a civil remedy does not discourage that behavior. Your typical rapist who is prosecuted in the criminal justice system isn't capable of paying meaningful compensation to a victim, although there are always exceptions. Preventing people from buying their way out of their wrongdoing is almost never advanced by criminal justice scholars as a reason for a criminal justice remedy. And, when I have clients who have been harmed, for example, by fraud, most would far prefer to receive compensation from the wrongdoer, than to see the perpetrator punished without receiving any meaningful compensation for their own injuries, which is the usual result in the criminal justice process. Most people think of the criminal justice system as more of a last resort when all other options fail than as a good first choice which it rarely is even when it is the least bad option. So back to the main question, what, if any, criminal charges can be leveled against the administrator and the false accuser if the alleged facts of the case can be confirmed to be true? In the fact pattern presented, where a public official at the University of Texas conspires with a student with whom the official has a pre-existing personal relationship to produce an intentionally inaccurate result in a University disciplinary hearing harming a defendant in that process, there are several university statutes that might form a basis for criminal action against either the public administrator or the conspiring student on the offense identified or conspiracy to commit the offense identified. In no case are any criminal charges against the University of Texas a plausible option in this fact pattern. Each of the offenses is a misdemeanor under Texas law. The best fit is "improper influence". Texas Penal Code § 36.04. This involves reaching an outcome in an adjudication for a reason other than one legally allowed due to someone's application of influence other than a bribe or kickback. The section states: (a) A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law. (b) For purposes of this section, “adjudicatory proceeding” means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined. (c) An offense under this section is a Class A misdemeanor. Two other possibilities are "abuse of official capacity", Texas Penal Code §39.02, or "official oppression" Texas Penal Code § 39.03. These sections and a related one, read as follows in the pertinent or potentially pertinent parts: Sec. 39.01. DEFINITIONS. In this chapter: (1) "Law relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly: (A) imposes a duty on the public servant; or (B) governs the conduct of the public servant. . . . Sec. 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: (1) violates a law relating to the public servant's office or employment . . . (b) An offense under Subsection (a)(1) is a Class A misdemeanor. . . . 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he: . . . (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or (3) intentionally subjects another to sexual harassment. (b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity. (c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly. (d) An offense under this section is a Class A misdemeanor . . . Also, in all three of these cases, the fact that someone committed suicide afterwards is basically irrelevant legally. | The question is not firmly settled under Florida law. Wheeler v. State, 203 So. 3d 1007 addresses the issue w.r.t. Fla. Stat. §827.01(2), now §827.03(1)(a)3 and the crime of aggravated child abuse, which depends on causing "great bodily harm, permanent disability, or permanent disfigurement". The court notes that the chapter does not define "great bodily harm", but they also note that the same term is used in §784 – where as you observed it is likewise undefined. The courts take the term to mean the same thing in both cases. Calling on previous case law, they observe that GBH is "distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in simple assault and battery." T.W. v. State, 98 So.3d 238, 243 (Fla. 4th DCA 2012); see also Brown v. State, 86 So.3d 569, 571-72 (Fla. 5th DCA 2012); Gordon v. State, 126 So.3d 292, 295 (Fla. 3d DCA 2011); Smith v. State, 969 So.2d 452, 455 (Fla. 1st DCA 2007) Thus [t]he state "must prove more than that the victim suffered some harm" Smith v. State, 175 So.3d 906 Consequently, the jury instruction for §775.087(2), related to discharging a firearm in the commission of a crime, states “Great bodily harm” means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises. does not include a case where The victim suffered no injury and testified that it only stung when she was struck with the broomsticks nor does it include scratches, swelling, and puncture mark, but it does include a beating where a victim's lips were "the size of a banana ... [and] his head was the size of a basketball." D.C.'s face was so swollen that his mother did not recognize him the next morning. It is not hard to imagine unclear cases between puncture marks and ... swellings? It's interested to note that in one case, minor swelling is dismissed but massive swelling is taken to be great bodily harm. Courts might appeal to a dictionary, such as Merriam-Webster's legal dictionary physical injury suffered by the victim of a violent crime that causes a substantial risk of death, extended loss or impairment of a body part or function, or permanent disfigurement : physical injury that is more serious than that ordinarily suffered in a battery which is a bit problematic since the crime you are interested in is a battery. Minnesota defines these terms, but makes a three-way distinction in types of bodily harm: "Bodily harm" means physical pain or injury, illness, or any impairment of physical condition. "Substantial bodily harm" means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member. "Great bodily harm" means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm. Washington also has a 3-way classification for child abuse, repeated for general crimes: (2)(a) "Bodily injury" means physical pain or injury, illness, or an impairment of physical condition; (b) "Substantial bodily harm" means bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part; (c) "Great bodily harm" means bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily part or organ. Ohio has a two-way distinction where "Physical harm to persons" means any injury, illness, or other physiological impairment, regardless of its gravity or duration. but "Serious physical harm to persons" means any of the following: (a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (b) Any physical harm that carries a substantial risk of death; (c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity; (d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement; (e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain. Texas has a rather different classification in terms of harm vs. serious bodily injury, the latter being bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. but harm is anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested thus can include financial losses and no physical contact. The line in Florida is not bright. |
On what grounds can I sue someone who intimidates and verbally abuses another? There is this guy in my community who is known to be very nasty, always intimidates and verbally abuses people. He is what we can imagine a narcissistic person. We have SMS, video and audio records of him abusing others verbally. On what grounds can such a person be sued? Also, can the plaintiff be anonymous? Personally I'm quite terrified if he finds out who reported him. | The first thing it depends on is where you live. The US has no law requiring niceness, but perhaps niceness-enforcement exists somewhere in the world. The second thing it depends on is exactly what he does, where and how. If he comes into people's houses uninvited and starts harassing them, that is generally a crime. If he makes nasty remarks to people walking down the street, you can't even sue him. If the person commits in a crime, you can report him anonymously. However, for there to be any prosecution, someone will have to testify in court: anonymous criminal testimony is inadmissible in the US. If there is no crime, just a potential civil action, the part would hire an attorney to file a complaint, etc. and that party would be named (not anonymous), would have to testify, and would also have to have been harmed. The police will not get involved in a civil dispute. Based just on what you have said here, your attorney would very likely say that there is no case to be pursued, and your only solution is to ignore him. | No. The true accuser is the state and the state always has standing to enforce its laws. This is an injury in fact. The judge would laugh at you and probably then double the fine for your insolence. This defense would be considered frivolous. | canada You have tagged this 'criminal law', so I will stick to that, and avoid non-criminal anti-discrimination regimes. Criminal Code, s. 319 makes it an offence to wilfully incite or promote hatred against an identifiable group. It does not matter whether the person that is being communicated to is a member of the identifiable group (meaning "any section of the public distinguished by colour, race, religion or ethnic origin"). What matters is a strict mens rea requirement that the communication was done with the intent of promoting or inciting hatred against such a group. If the accused holds such intent, it is no defence that they mistook the person they were communicating with as not being a member of such a group. See generally, R. v. Keegstra, [1990] 3 SCR 697. Hypothetical laws If instead you are asking about what a hypothetical law could require (since you ask, "If a law for example criminalises intimidating or assaulting someone who suffers from dwarfism..."), then as a matter of statutory interpretation, the law could be written in a way that makes the mistake you describe a defence or it could be written in a way that does not allow that defence. E.g. "Any person who assaults another, knowing that the other person is X, commits an offence..." This phrasing of the law clearly would require the accused to know that the person they have assaulted is in the category X in order for the assault to fall within this specific variant of assault. E.g. "Any person who assaults a person that is X, regardless of whether they know the other person to be X, commits an offence..." Under this phrasing of the law, knowledge of the status of the target of the assault clearly does not matter. However, Canadian law has constitutional minimum mens rea requirements for elements of crimes that bring risk of imprisonment. If the offence is punishable by imprisonment, then the variant that essentially removes the mens rea from the element relating to the target's status would be unconstitutional. | There is, in most countries at least, no law requiring a business to treat a customer fairly. In general, a business may refuse to serve a would-be customer for any reason or none, provided that the reason is not membership in a protected class (racial, religious, ethnic, or sexual bias, mostly). Exactly which classes are protected depends on the local law (in the US, there can be such laws at all of federal, state, and municipal levels). If a customer is asked to leave and does not do so, s/he could be charged with defiant trespass (or local equivalent). More likely, security, or the police, could simply escort the customer out of the business, using as much force as is reasonably needed for that purpose. Unless there are grounds for action not mentioned, I see no basis for a successful suit by the customer. | Your confessions, to anyone, can be used against you. If A admits to B that A stole the car, B can testify to what A said. In fact, if B accuses A of a crime and A says nothing (and C witnesses this), C can testify as to what B and A said (or didn't say) – this is known as an adoptive admission, and it is up to the jury to decide if they think the silence is significant. Recordings are likewise admissible. All evidence is in principle defeasible, so if there is a video of "you" committing a crime, you can make the case that it wasn't really you, and the jury will weigh the evidence to see if they are firmly convinced that you did commit the crime (at least in New Jersey... long story about 'burden of proof'). | I have bad news. California's vandalism law prohibits maliciously: defacing property with graffiti defacing property with inscribed material damaging property destroying property Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you. So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because: it "mars the surface with graffiti which must be removed in order to restore the original condition" the definition of "deface" "does not incorporate an element of permanence" "marring of the surface is no less a defacement because it is more easily removed." Given that language, I'd argue that the vandalism statute includes sidewalk chalking. But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment. The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited. So how does the First Amendment apply? There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test: The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets. There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions. So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision. | Here are a few examples (sorry, they are in German) https://www.echo24.de/region/kuenzelsau-24-jaehriger-verurteilt-gefaengnis-beleidigungen-instagram-13181018.html https://www.mainpost.de/regional/main-spessart/beleidigung-bringt-34-jaehrigen-ins-gefaengnis-art-8445139 https://www.maz-online.de/Lokales/Brandenburg-Havel/Gericht-verhaengt-Gefaengnis-wegen-Beleidigung-und-Noetigung https://www.wochenblatt.de/archiv/fuer-beleidigungen-wieder-einmal-ab-in-den-knast-154472 So it does actually happen, but it's fairly rare. It typically involves abusive behavior: frequently repeated insults, defamation, and threats and also ignoring any cease and desist orders or requests to stop the behavior. There is also a pre-existing criminal record: it's not the first time they stand in front of a judge for this type of thing. The guy in the last article had already 12 previous offenses so the judges felt that a fine or probation is just not working. So it's not so much the exact type of insult but more about relentlessly barraging the victim and having an existing pattern of bad behavior and related offenses. | There are cases out there like Unnamed Petitioners v. Connors, State v. Unnamed Defendant, Williams v. Unnamed Defendant; there have been indictments of John Doe who was only identified via a DNA profile. Not knowing the actual name of a person wouldn't pose a problem per se, and it seems that when the name is not known, John or Jane Doe is generally filled in. There was in instance a year ago in the UK where rioters who refused to identify themselves, and prosecution decided to drop the case. |
What constitutes a threat Assuming no other details are hidden, and you only have the following facts, would it be enough to classify the case as a reasonable threat? Person A and B are roommates. Person A is upset with Person B due to issue 1, and person A tells B to be careful next time or there will be "serious problems" Issue 2 arises and Person A is upset with Person B. Person A tells B that "This is 2 and you can guess what will happen with 3" (Just meant there will be an argument) and "You should be careful with me". Person B asks "What will happen on 3?". Person A replies "Nothing illegal. I'm a person of law" No other interaction happens, especially no face-to-face or voice interaction I know a threat is dependent on intention, but would there be any reason for police to interfere, based on this exchange happening through text messages? | Start with the premise that Person A has so far engaged only in speech, which is presumptively protected by the First Amendment. So unless the speech is for some reason unprotected, the police should not involve themselves. This of course begs the question of whether this speech is protected. The First Amendment does not protect "true threats," which includes "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343 (2003). So the question for the police is whether Person A's texts were meant to communicate a serious intent to commit an act of unlawful violence. Removing First Amendment protection won't be as simple as letting B testify that he truly felt threatened, as the question is whether A meant to communicate a threat. But that also means that for A, it won't be enough to simply deny any violent intent, so the "nothing illegal" disclaimer won't be enough. In the end, this is a question for a jury to decide, should the case ever reach that far. The jury would essentially be asked to engage in mind-reading, determining what A was thinking when he sent those texts. The jury should be instructed to take several factors into consideration when it makes that decision, including the "context" of the remarks (the explicit disclaimer of violence helps A), the "conditional nature" of the threat (the three-strikes langauge helps A), and the "reaction of the listener" (calling the police hurts A). Watts v. United States, 394 U.S. 705, 708 (1969). Practically speaking, if B were to call the police, I'd expect them not to investigate, unless they were awfully bored. If they decided to, I don't think there would be any actionable violation of A's rights, given their obvious inability to divine A's intent based solely on B's account. A court would likely allow them to investigate, but I doubt a prosecutor would allow them to bring charges based on the facts you've described. | Most leases have a provision allowing a landlord to make entry without notice in an emergency, but the better course of action, as noted in a comment by @BlueDogRanch, is to call the police and ask them to make a "welfare check." You would ordinarily be permitted to cooperate with police by unlocking doors in furtherance of their welfare check. The police are trained to do this properly in a way that properly balances the need to aid someone who is sick or ill, the need to preserve evidence if there was a death or crime that needs to be understood legally, and to protect the legitimate privacy interests of the tenant. You are not. You could incur liability for failing to prevent death or aggravating injury, could be wrongfully implicated if physical evidence from you contaminates the scene or you destroy evidence showing the true cause, and could be sued for invading the tenant's privacy if it was found that you entry was unreasonable and that it wasn't really an emergency, which is always easier to conclude with 20/20 hindsight. As it is, your biggest potential source of liability is delaying in calling the police seeking a welfare check. They often respond quite quickly to these by the way, although it is not the very highest priority for law enforcement. | Yes, although whether you get any response depends on a lot of factors. Specific, credible threats are much more likely to get a response than "I'm gonna kick your ass, amphibient, you (insert opposing viewpoint/sports team/etc)." The law broken in question would be: 18 U.S. Code § 875.c: Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. As you are in different states, this would need to be reported at a national level. This would be done at https://www.ic3.gov/complaint/default.aspx. Whether or not this is the best option depends on what you hope to accomplish and whether the other person is likely to act on those threats. | united-states But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as "We believe we acted correctly, but this will be decided in court"? Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)? Legal Ethics Considerations There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity See Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - Colorado's rule is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version): (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;(iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Statements such as "We believe we acted correctly, but this will be decided in court" are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant. Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute. The Risk That A Statement Will Be Used Against You Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial. For example, this week former President Trump's public statement about his knowledge of classified documents, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.) In the civil rape-defamation case against him (as noted, for example, in this Law.SE answer), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office. It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated. Social media statements about pending cases by litigants routinely provide powerful evidence against them in trials. Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are "forces of nature" who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say "no comment" across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason. Avoiding Annoyance To Opposing Counsel, Parties, And Judges Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement). It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority. | Generally speaking, ex parte communications with a judge (i.e. communications to which all parties to a case are not notified) are prohibited, both by law and as a matter of judicial and attorney ethics, subject to some narrow exceptions (e.g. applications for arrest warrants prior to the arrest warrant being carried out). Generally speaking, communications with the court (which is to say with judges or their subordinates) are made a matter of public record, and if the communication is about a particular case, all attorneys in the case must be given notice of it (if someone is not represented by an attorney, the notice goes to the defendant rather than their non-existent attorney). The attorney may then communicate the communication to their client, and generally speaking should communicate it to the client. I don't see anything in the question that suggests that this proposed communication would fall outside the general rule. But, the question isn't very specific and I wouldn't rule out the possibility that an exception might apply in a case with very unusual facts. Also, usually, a request to reconsider a sentence has to be made by a formal motion filed by the prosecutor or the defendant. Generally speaking, a third-party cannot file that motion unilaterally. A third-party or victim would usually only have input into the decision through the prosecutor's office. Third parties and victims are not generally permitted to file motions to reconsider sentences that have been imposed even in states with "victim's rights" statutes, but can publicly provide input to the court before a sentence is imposed, usually at the behest of either the prosecutor or the defendant. Furthermore, generally a criminal defendant has a constitutional right to not have a sentence made more severe after being sentenced the first time around. Reconsideration of a sentence once it is imposed may only be in the direction of leniency. Once a sentence is imposed, it can't be reconsidered to be made more harsh. | If the police can get a warrant from a judge confirming that they have probable cause, they could, and that finding would probably be confirmed in a subsequent suppression hearing alleging that the warrant was issued without probable cause. But, it would be unlikely that a judge would issue a warrant that covered multiple apartments if there was not probable cause to indicate that evidence of the crime was in a particular apartment. I could imagine a situation where a judge might do so (e.g. the evidence was strapped onto a rat that had the ability to move from apartment to apartment in a wing of four adjacent apartments in the same wing of the building through the crawl space in the ceiling), but in any reasonably normal fact pattern, a judge would be unlikely to grant a warrant in a situation where probable cause had not narrowed down the particular apartment where the evidence was believed to be located due to insufficient investigation by the police. | A text message is just as legally binding as a letter, and the lion's share of the cases have held that a text message from a known sending phone number is equivalent to a signed letter. One would have to carefully parse the exchange of communications to see if they amounted to a binding offer and acceptance, but the fact that it was in a text message, rather than on a piece of paper is irrelevant. Indeed, generally speaking, such an offer and acceptance, if the words exchange show that, could be binding even if made orally, if it could be proved by a preponderance of the evidence. Procedurally, however, once a judgment has been entered, as is the case here, the process of proving that you have complied with a stipulation regarding what is to constitute payment in full may be challenging. I'll leave the question of civil procedure in Connecticut small claims court to someone more knowledgable about it than I am as that could vary a lot from state to state, or even from court to court based upon local practice within the state. | RS 14:95.2 applies to everyone, and defines a particular kind of crime. The housing contract overlaps that law in a small way: the legislature did not make it a crime for a student to possess a firearm in his dorm room. But the university makes it a lease condition, in the same way that having a pet is not a crime, but is grounds for terminating the lease. |
Can i get sued by using a VFX in game, that are similar to Marvel`s VFX (The Avengers)? I am developing a game and ended up creating an effect which triggers on enemy death. An enemy dissolves and spreads particles around. The end effect reminded me a bit of the movie The Avengers and Thanos disintegration effect. The VFX doesn't really look just like in the movie, has a different color, and is much more simplified. Can I get sued in this case by Marvel (or someone else related) for using this effect in my game? If not, what if I were using the exact same effect or very much similar to that in the movie (to be sure I am 100% safe with my current setup)? | This would be fine for two reasons. First, this is not what copyright is for. It's not that this exists, so nothing like it can- it's that someone worked on this, and that work shouldn't be used by someone else without their consent. Your work is not derivative of the effect from the film. Second, Marvel doesn't have a copyright or trademark or someone turning into particles. I don't think such a thing can be and even if it was, they're certainly not the ones who created it. For example, Undertale used it 3 years before and that was a reference to many classic 8-bit games. | One reason could be because of the scènes à faire doctrine. Many of the things you notice as similarities are not infringement. I don't know the counts of lawsuits for music infringement vs screenwriting infringement. There may just be more songs than screenplays. Screenwriters/producers do get sued, though. See Cinar Corporation v. Robinson 2012 SCC 25. | 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) | Yes The relevant legal concepts are copyright, contract law and the Computer Fraud and Abuse Act. You are liable to be sued by the people affected for damages and/or be prosecuted by the government for the felony under either or both laws. Let's start here: "I bought a game". No, you didn't; you bought a licence to use the software in accordance with the terms of service (licence) that you freely agreed to. All modern ToS will not allow you to reverse engineer the software. If you breach those terms of service then you have broken a contract - that is what allows them to sue you. They will no doubt argue that the prevalence of cheat routines developed by people like you reduce the number of people willing to play the game - say 100,000 users x $10/month * 12 months = $12,000,000. They will also ask the court to impose punitive damages to discourage this sort of thing. Which brings us to the copyright violation. You are allowed to copy their software provided you comply with the ToS. But you didn't. Therefore you are in breach of the Copyright Act and subject to additional civil and criminal sanctions. Finally, your "cheats" access their servers in a way that the ToS doesn't authorize. This puts you in breach of the CFFA - breaking this carries serious jail time penalties. Not to mention that in the US, a criminal conviction will preclude you from many jobs, including, naturally, any with access to company computer systems. Putting aside the illegalities, cheats are unethical and ruin the game experience for hundreds of thousands of people who don't use cheats. You are a criminal - stop being one! | Can I sell below parody T-Shirts? Sure, you can sell those shirts. But there is no guarantee that your own determination and claim of Fair Use for a parody would prevail in court. The determination that your use of those derivative designs - Fair Use as a Parody - is not yours to make; it is for a court to make, if and when the copyright holders of those two franchises choose to take you to court. Your determination of Fair Use could only be valid in the US; there may be no Fair Use law in your country, and any relevant international laws and agreements will impact what the legal steps the copyright holders can take against you. Read Fair Use again for exceptions to the law and about international laws such as as Berne Convention and World Intellectual Property Organization. Warner Brothers (Superman) and Paramount (Godfather) could decide at any time to confront you with a cease and desist letter or a lawsuit to challenge your claim of Fair Use. They may win; you may win your defense of their lawsuit. That's a risk you will take. The fact that other people currently produce shirts with similar designs doesn't mean anything. They may not have been confronted by the copyright holders; or the copyright holders may not care to confront small producers of possibly infringing designs and products. | You cannot be successfully sued nor charged with a crime in the US merely because a movie, book, or other work is violent. Consider the rape scenes in the movie Deliverance, or John Hersey's The Wall, a 1950 novel which describes in detail the Warsaw Ghetto and the massacre and torture of its inhabitants by the Nazis during WWII. Or Plevier's Stalingrad, a 1940s novel about the aftermath of the Battle of Stalingrad, also during WWII, and the suffering of both Russian and German soldiers and civilians there. (Both novels were later filmed in less violent versions.) Many other examples could easily be mentioned. Triggering anxiety or PTSD in a reader or watcher would not be grounds for a suit either -- attempts to bring such suits have been dismissed. Claims that violent works inspire or encourage crime or anti-social acts have led to attempts to regulate such works, from comic books in the 1950s to video games in the 1990s. None of these works have prevailed. The so-called Comics Code Authority survived for a time because it was a strictly voluntary process -- some publishers never submitted content to the CCA censors. The Motion Picture Production Code was similarly voluntary, as is the current system of movie ratings. Works that defame someone can be the subject of libel suits. But to win such a suit in the US, the plaintiff must show that statements were made that were false, and not matters of opinion. The plaintiff must also show that such statements were "of and concerning" the plaintiff, that is that they were specifically about the plaintiff. The plaintiff must in most cases further show actual harm to the plaintiff's reputation, unless the false statements were of the limited category known as per se libel, which give rise to a presumption of harm. These include false claims of improper business or professional conduct, false claims that the plaintiff committed a serious crime, or false claims of sexual improprieties. Moreover, in many cases in the US the plaintiff must show actual malice, that is that the defamer made the false statements knowing them to be false, or with reckless disregard for whether or not they were true. This applies when the person bringing suit is a public official or public figure. Mere general violence will not be grounds for a libel suit. Incitement Several comments have asked if violent depictions could constitute incitement and therefore be unlawful. The current rule in the US is that speech (or writing) can only be punished as incitement if it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". This language comes from Brandenburg v. Ohio, 395 U.S. 444 (1969), and has thus been stable for over 50 years. Prior to that the US Supreme Court used the "clear and present danger" test, first adopted in Schenck v. United States, 249 U.S. 47 (1919) The actual passage from Schenck was: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. In Brandenberg the Supreme Court held Ohio's criminal syndicalism statute unconstitutional, because that law generally criminalized simple advocacy of violence. Under neither test would a book or movie that simply depicted violence be subject to legal action simply for that reason. A work would have to specifically advocate violence. Under the current Brandenberg test the work would have to urge people to violent lawbreaking right away, when it is read or watched. and actual lawbreaking would need to occur, or be reasonably likely to occur, for legal action to be constitutional. Actions against incitement under this test have been largely aimed at speeches before crowds or groups, urging them to riot or take other violent and unlawful action right then. While a book, movie, or video could be incitement under this test, it would need to be much more than just violent, it would need to strongly advocate present unlawful violence. That is not what the question asked about. | Alice has been developing her own enhancements, and they're pretty similar to Bob's. Neither Alice nor Bob has copied the other's enhancements, so neither has violated the other's copyright in the enhancements. Whether that could be proved in court is another matter, of course, but since the original work is licensed under creative commons the question unlikely to arise in court. Would Alice be prevented from coming up with enhancements to her own game if other people could prove they thought of and released the idea first? No. Copyright does not protect ideas. It only protects a particular expression of those ideas from being copied. Theoretically, if two authors come up with identical 500-word descriptions of something and can establish that each did so independently, neither has a claim against the other. The practical problem there, of course, is that it would be impossible to prove such a thing. Could Alice outright claim Bob's "Adapted Material" because he developed it on her original work? Assuming that in publishing his adaptations Bob followed the terms of the creative commons license with respect to the original work, Alice's only claim would be that he copied her adaptations without following the terms of the license. If Bob can show that he did not do so, her claim would fail. In a comment, you wrote: Suppose Alice went ahead and intentionally, somehow provably ripped off Bob's "Adapted Material" because she liked the content so much, does Bob reserve any rights on his adaptation, or is Alice able to commercialize the work that Bob did in extending her original work? If we assume that Bob complied with the license of the original material, we know that he licensed his adaptations under "the identical terms," so Alice would be able to use Bob's adaptations under those terms for non-commercial purposes. Since the assumption here is that Alice provably copied something of Bob's, I think it is fairly clear that she would be liable for damages if she exploited that material commercially without paying royalties. | Is the superhero American Crusader in the public domain? I have insufficient knowledge of the actual practice of individual and corporate owners of rights in superhero characters to protect their rights in individual characters to provide a definitive answer the first part of the question about American Crusader without extensive research. Copyright Considerations The character debuted in August 1941 to April 1944, published by Better Publications, and lots of works from that date are still not out of copyright. Better Publications, later renamed Standard Comics, folded in 1959, which leaves open the possibility that it failed to renew its copyrights as it would have been required to do in the time period not long before the expiration in 1967-1970 of the first of two possible rounds of copyright protection under prior law, but it appears that the copyrights may have been sold to a third-party when the company folded, and that third-party may have preserved the copyright in a timely fashion. If the copyrights were renewed, they benefited from an extension of copyright periods for copyrights still in force when the current law (pre-amendment) was in force, and from a later extension of copyrights under that law. It also depends to some extent on who holds the copyright. If the copyright was held by the natural person author, whose identity isn't clear, the date of that author's death matters (even thought the date of death had not been relevant when the copyright was originally issued under prior law. Alan Moore with America's Best Comics revived the character in 1999. There was also an earlier revival by AC Comics, which is also not out of copyright. So, any public domain aspects of the character would at a minimum not include anything derived from either revival. It isn't clear if either revival was done with the permission of the copyright holder, or if either company reviving the character had determined that the copyright had expired. Trademark Considerations Better Publications and its successors may also have had trademarks related to American Crusader, but those probably expired from lack of use prior to two recent revivals of this character. But, even if the copyright on the original version of the comic in 1941 has expired and provides a public domain core upon which you can expand independent of AC Comics or Alan Moore's revival with ABC, either AC Comics or ABC may have a trademark in connection with American Crusader that materially limits what you could do with this character. There is one live American Crusade trademark on file with the U.S. Patent and Trademark office: The summary of the registration is as follows and it does not appear to apply to the comic book character: Mark Image Word Mark AMERICAN CRUSADER Goods and Services IC 008. US 023 028 044. G & S: Filleting knives; Fishing knives; Folding knives; Hunting knives; Pocket knives; Sport knives. FIRST USE: 20160215. FIRST USE IN COMMERCE: 20160215 Standard Characters Claimed Mark Drawing Code (4) STANDARD CHARACTER MARK Serial Number 86896152 Filing Date February 3, 2016 Current Basis 1A Original Filing Basis 1B Published for Opposition December 27, 2016 Registration Number 5159010 Registration Date March 14, 2017 Owner (REGISTRANT) Patriot Outfitters, LLC LIMITED LIABILITY COMPANY KANSAS 206 Maple Hill Road St. Marys KANSAS 66536 Attorney of Record Joseph T. Leone Type of Mark TRADEMARK Register PRINCIPAL Live/Dead Indicator LIVE The dead trademarks which can be reviewed via an easy internet link also do not refer to the comic book character. So, you probably only have to worry about copyright considerations and not trademark considerations, although there could still be a state trademarks (arising from state law filings), or common law trademark rights in it (arising from use in commerce in a particular geographic area), asserted. If so, what aspects of the character can be safely used? If it is in the public domain (not just under copyright, but also under trademark law which does not have a fixed expiration date), then you can use all public domain aspects of the character. For example, it isn't a coincidence that there are lots of Sherlock Holmes and King Arthur and Merlin and Aladdin and Brothers Grim fairy tales, and Jane Austin book based stories in TV and movies, because those characters are in the public domain, so no one other than the staff used to create their versions of those characters needs to be paid a royalty or needs to provide permission to do so. In the case of Sherlock Holmes, part of the Sherlock Holmes works are in the public domain, and other parts of the original Sherlock Holmes works are not, so anything specific to the copyrighted portion of the original works are still protected by copyright. |
Harming a nearly dead person Bob is walking down the street when he slips on a banana peel. He bumps his head on the pavement and starts convulsing. Given the seriousness of his concussion, it seems that he's about to die. Bob's ex girlfriend Alice happens to be walking nearby. She comes to his aid and gives him water. However, she secretly spikes the water with arsenic. Bob drinks the poisoned water and dies. Is Alice guilty for Bob's death? Edit: A similar question was asked here. My question is a bit different since I'm asking whether it is legal to harm, and not kill, a person who is dying. | Does he die from the poison or from the head injury? If it's from the poison, yes, Alice is guilty of murder. If it's from the head injury, Alice is guilty of attempted murder. If Bob dies from a combination of the head injury and the poison, Alice is likely guilty of murder. The general common law rule is that when there are two causes of death, liability attaches when the defendant's actions were a "substantial factor" in causing the death. | In general, the perpetrator can be sued by anyone who suffered harm as a result of his actions. The fact that he's also being prosecuted criminally doesn't change that, nor does it matter whether or not the victim is a "celebrity". The perpetrator could, for instance, be sued by any or all of: the victim himself, for his pain and suffering and loss of earnings the victim's club, for the financial loss due to the player not playing the victim's medical insurer, for the cost of his care. However, even if any of these plaintiffs win their case and are awarded some huge sum of money, it doesn't help them if the perpetrator doesn't have the money. They can only actually collect what the perpetrator has, and possibly some fraction of his future earnings (which are not likely to be very much if he is in prison). So unless the perpetrator is quite wealthy, it's unlikely they would go to the trouble and expense of a lawsuit. | Through the legal doctrine of "transferred intent", wherein if one intends to murder A, and undertake actions to kill A, but one's actions kill B, one has murdered B. Whatever crimes one would have committed, had one performed them on one's intended target, are considered committed against the individual one actually performed them on. Many crimes require one to have mens rea to be guilty; they do not require one to have mens rea towards a given individual. So, so long as one had the proper intent to murder someone, the actual victim of their actions is irrelevant. | Barring any specific statute the relevant law is the tort of negligence. To succeed Alice must prove Bob: had a duty to Alice, breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), the negligent conduct was, in law, the cause of the harm to Alice, and Alice was, in fact, harmed or damaged. She will probably succeed on 1, 3 and 4 where she will struggle is with 2. It seems that Bob did everything a reasonable person could do to avoid the accident. The only possible hope is that not knowing that bridges freeze first might be something a qualified NZ driver should know and that he breached his duty by not knowing if that is something the judge considers reasonable. The traffic warning is irrelevant and untested (and untestable) hearsay and should be excluded from evidence. | The official clause in question is here: Pecandu Narkotika yang telah cukup umur sebagaimana dimaksud dalam Pasal 55 ayat (2) yang sedang menjalani rehabilitasi medis 2 (dua) kali masa perawatan dokter di rumah sakit dan/atau lembaga rehabilitasi medis yang ditunjuk oleh pemerintah tidak dituntut pidana which unofficially says Narcotics addicts who are old enough as referred to in Article 55 paragraph (2) who are undergoing medical rehabilitation with at least two treatments by doctors in hospitals and / or medical rehabilitation institutions designated by the government shall not be not criminally prosecuted where the italicized part involves some interpolation – a professional legal translator could have a better English rendition. The point is that you have to actually be getting treatment, and it has to be at a facility that is approved (ditunjuk) by the government. Such addicts are not criminally "dituntut", which could cover being charged, indicted, prosecuted or sued, a minor ambiguity resolved by the fact that the prosecutor is the "penuntut umum" (same root word). Under the law, it is not sufficient to just register (report yourself), you have to actually be receiving treatment. The part about "was not sentenced" is just a mistake. | It depends... It could be an offence under section 5 Public Order Act 1986: (1) A person is guilty of an offence if he— (a) uses [...] disorderly behaviour ... [...] within the hearing or sight of a person1 likely to be caused harassment, alarm or distress thereby. Then there's Causation to consider, which is: whether the defendant's conduct (or omission) caused ... harm or damage. And also recklessness, which can be described as: unjustified risk-taking. In R v G [2004] 1 A.C. 1034 two boys set a fire which caused significant damage. They were charged, and convicted, for reckless arson contrary to section 1 of the Criminal Damage Act 1971: (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. ... (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson. This conviction was quashed by the House of Lords who determined that test of recklessness for criminal damage is subjective and should take account of, for example the defendant's age (in R v G they were 11 and 12). The court determination was: A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk. But compare this with DPP v Newbury and Jones [1976] AC 500 if someone were to die as a result of being hit by a brick: The defendants, both teenage boys, had thrown a piece of paving stone from a railway bridge onto a train which had been passing beneath them. The object struck and killed the guard who had been sitting in the driver’s compartment. The defendants were convicted of manslaughter, and unsuccessfully appealed, on the ground that they had not foreseen that their actions might cause harm to any other person. Lord Salmon explained that a defendant was guilty of manslaughter if it was proved that he intentionally did an act which was unlawful and dangerous and that act caused death, and that it was unnecessary that the defendant had known that the act in question was unlawful or dangerous. 1Note that there has to be such a person, not a hypothetical one, to be guilty of this offence. | It is an unquestioned pre-American axiom, expressed in Latin as actus reus non facit reum nisi mens sit rea ("the act is not culpable unless the mind is guilty") which has been part of the Anglo-American legal system since at least the 17th century. It is thus presupposed in all criminal proceedings. It's not that a person only commits a crime with free will, it's that it is not deemed to be a crime if there is no free will. A person can be held at gunpoint and required to commit a criminal act: the person does indeed have free will to choose to be killed rather than commit the act, but the act is legally excused since dying is never held to be the only acceptable alternative to committing an otherwise-criminal act. | This is manslaughter of the vehicular variety Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:... (c) Vehicular— (1) ... driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. This is what they call a wobbler, and could be charged as a felony or a misdemeanor. In the latter case, the maximum penalty is a year in county jail and in the former it is six years in state prison. If the cause was ordinary negligence, it is just a misdemeanor. The details of gross negligence are set forth in the jury instruction CALCRIM 592 A person acts with gross negligence when: He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. The "absent-mindedness" defense seems a bit far fetched, but still not everybody who drives inattentively is prosecuted for a felony, or even a misdemeanor. However, it is really hard to imagine not being acutely aware of the fact that people drive on the right side of the road here. Without a more-detailed story, I don't see a basis for deciding what level of negligence a prosecutor is likely to argue for, and what the prosecutor's agenda is: somewhere between no prosecution, and (most likely) misdemeanor manslaughter. |
Who has the final say in the choice of the electors? In case of disputes related to the presidential election, who has the final say in the choice of the electors: state legislature, SCOTUS or the state's supreme court? It's my understanding that the US constitution says it's state legislature, but Trump recently claimed voter fraud and stated his intent to get SCOTUS involved. If the answer is the courts, what kind of remedies can they possibly provide? | The direct answer is simple -- the US Constitution (Article II, Section 1, Clause 2) provides that electors are appointed in the manner that state legislatures direct -- so the answer is the state legislature decides. But state legislatures don't exist in a vacuum, and the reality is not so simple. State legislatures direct the manner of choosing electors by passing state laws, which, in the case the state decides to choose electors by holding some sort of popular election, include laws for how and when ballots can be cast or received, and how recounts are to work, etc. Normally, state laws are interpreted by state courts, and state courts can strike down or modify state laws if they find that the state laws violate the state constitution. And more fundamentally, state legislatures derive their authority from state constitutions, so in principle, state legislatures should not be able to perform any act that does not conform to the state constitution (which is interpreted by the state courts). However, the Supreme Court decision in Bush v. Gore (2000) overturned the Florida state supreme court ruling on how to conduct recounts in the Florida election for presidential electors. Normally, federal courts do not get involved in state law issues, but the decision was mostly made on equal protection grounds, and the equal protection clause is part of the federal Constitution. So federal courts can get involved if there is an issue that relates to federal law or Constitution. In the Bush v. Gore case, there was an interesting concurring opinion that said the Florida supreme court had acted contrary to the Florida legislature, but this opinion was only joined by 3 justices, so it is not binding. Recently, the issue came up again when the US Supreme Court declined to stay a decision by the Pennsylvania state supreme court that said the Pennsylvania constitution required mail ballots postmarked by Election Day but received up to 3 days after Election Day to be counted, even though the state law said they must be received by Election Day. Notably, although the US Supreme Court declined the stay, the order listed that 4 conservative justices dissented and said that they would have granted the stay. This was before Justice Barrett was confirmed, so, now that she is confirmed, depending on her legal position on this issue, there might now be a majority of 5 justices that would intervene against the state court if such an issue were to come up again. The order did not list the legal reasoning for each of the dissenting justices, so it is unclear what legal justification they had in mind in agreeing to overrule the state court. | Separation of powers means that the judiciary can't pass laws or executive orders. It doesn't mean that the judiciary can't interfere with their passage and enforcement. Quite the opposite -- the checks and balances inherent in the system ensure that the judiciary can interfere in some cases. One of the checks is the concept of judicial review: the courts' power to review each branch's actions for compliance with the constitution -- and more importantly, to strike down actions that are unconstitutional. When a court strikes down part of a law, though, they aren't writing a new law, or even repealing a law. They are overturning parts of the existing law -- basically declaring the unconstitutional parts of it void, to be treated as if they didn't exist. In India's constitution, Article 13 provides the main basis for this power. Article 13.(2) (in Part III) states: (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. This article, aside from making it clear that laws passed by the State can be void, also gives the Supreme Court the inroads it needs to do the overturning. The catch is, the Court can not overturn most laws passed by Parliament, just the ones that Part III can be construed to prohibit. (While the judiciary is not explicitly named, it's the only branch that can officially say whether or not a law is constitutional. It'd be a conflict of interest anyway for Parliament to do it. Parliament, in passing the law, presumably wanted it to be enforced, and thus has an interest in avoiding too much scrutiny.) So the Court can already declare an unconstitutional law void, because it already is...and that's before we even get to Article 142. Let's take a look at the article anyway: (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. Note that (2) explicitly grants the power to issue subpoenas, contempt citations, etc. So we can't claim that's what (1) was intended for, and have to ask what it means. The Court decided that the article gives it the power to order the government not to violate your rights, as such an order is "necessary for doing complete justice". And as the final arbiter of the meaning of the very text that defines it into existence, it has that prerogative. And due process is one of the rights protected. Article 21 (also in Part III): No person shall be deprived of his life or personal liberty except according to procedure established by law. "Procedure established by law" is a much weaker phrase than "due process", and technically meant that anything that the government scribbled into law was good enough. But case law has all but removed the distinction. (See Maneka Gandhi vs Union Of India.) Basically, any procedure for depriving someone of life or liberty must be just, fair, and reasonable. (Otherwise a law declaring you a criminal, to be arrested on sight, would be constitutional.) "Someone filed a complaint" simply wasn't gonna fly. | If six justices decided that the case were sufficiently important, they could refrain from recusing themselves so as to be able to hear it. If that didn't happen, the lower court's ruling would stand, as you suggest. If I understand this rule correctly, if four justices had conflicts of interest, the court would lack a quorum. That's more likely, though admittedly very unlikely. However unlikely it may be, it has actually happened (for example, Shao v. Roberts). | How would jury selection work for a trial of Donald Trump? Just like it does for everybody else - using the rules for criminal procedure in the relevant jurisdiction. For example, in New York, each juror must be fair and unbiased: A juror who cannot provide unequivocal assurance or whose credibility about the assurance is in doubt would properly be excused for cause. Jurors (like judges) are not blank slates; they have opinions about all sorts of things. That doesn't matter. What matters is if they can set those opinions aside and make a decision based only on the evidence. It is not necessary for juror's minds to be empty, just that they be open. | Marbury V. Madison did not establish judicial review. It was simply the first case where that power was used. It was clearly spelled out in The Federalist #78 that this power would exist in the new constitution, and those who voted to ratify it understood, or should have understood, that it would exist. All that Marbury V. Madison decided was that the Supreme court did not have original jurisdiction to issue Writs of Mandamus That could be overturned, or the constitution could be amended to grant such jurisdiction to SCOTUS. That would not have any major effects on the US judicial system as far as I can tell. I suppose that the constitution could be amended so as to deny the power of judicial review to the courts. But I think the resulting system would be potentially unstable, and this would require a far more fundamental change than simply "overruling Marbury V. Madison" As #78 of The Federalist said: By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. (emphasis added) The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . . [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . . [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. | The newly elected Congress does all of the work in electing a new President. Under the 20th Amendment, the newly elected Congress takes office on January 3. Then three days later, on January 6, 3 USC § 15: Counting electoral votes in Congress, requires the new Congress to meet in Joint Session to count the electoral votes. If this session does not produce a President or Vice President, there is what is called a contingent election. In a contingent election the House begins immediately to choose a President from among the top three electoral college vote getters, while the Senate chooses a Vice President from among the top two electoral college vote getters. Both Houses use majority rule. The House votes by state, so a majority is 26, while the Senators vote individually, so a majority is 51. If the House does not pick a President by Inauguration Day, January 20th, the Vice President serves until a President is picked. If neither a President nor a VP has been picked by the 20th, the Presidential Succession Act applies, and the Speaker of the House, President pro tempore or a cabinet officer serves as Acting President. It wasn't always done this way: The 20th Amendment was passed in 1933 to take control over elections away from the lame duck Congress. Before the 20th A was adopted, the terms for P, VP and Congress all ended on Inauguration day, March 4. That meant the lame duck Congress had to deal with electoral matters. By giving Congress and the P/VP different expiration dates, the Amendment meant new Congress could deal with the election. Setting the election counting date after the new Congress was seated (on January 6), meant only the new Congress could. | Authorizing someone else to vote on your behalf (either at your direction or at their own discretion is called Proxy Voting. It is extremely common in elections within corporations and other organisations; it is extremely rare in governmental elections. Each state of the US determines the rules governing voting so there is no blanket answer. For California the answer is no - from Where and How to Vote the voter must cast their own ballot, either in person or by mail. | The United States would be one such country. I'm sure it is not the only one. In the case of countries with constitutional courts there is basically no one to second guess their interpretations which is also true when the apex court in a country provides an opinion. Since no one can overrule many of these courts, they are allowed to do what they want. |
Is it legal to collect data on "Every Administration staffer, campaign staffer, bundler, lawyer who represented... " of Trump administration AOC tweeted: Is anyone archiving these Trump sycophants for when they try to downplay or deny their complicity in the future? I foresee decent probability of many deleted Tweets, writings, photos in the future And some guy associated with https://www.trumpaccountability.net/ replied with(tweet is deleted/protected, but data is still in google search for term trumpaccproject ): Yes, we are. The Trump Accountability Project (@trumpaccproject) Every Administration staffer, campaign staffer, bundler, lawyer who represented them — everyone. One one hand it is perfectly fine to share information, on other hand it could be seen as political intimidation/harrasment... Are there any laws related to this? For purposes of this question assume that everything they collect is true, aka no false informations are presented about the people investigated, since I presume there are anti libel laws. Also I am only interested in legality of this, please keep political views out of this. | Yes. The right to gather information is a central component of First Amendment protection. | If a newspaper publishes an article that is actually defamatory (i.e. publishes false statements that cause you quantifiable harm), and you successfully sue the publisher, you might get a court order requiring them to retract the statements or remove them from their web page. An archive like newspapers.com isn't making false statements, it is making true statements about what the Poughkeepsie Journal published. At any rate, you name is not defamatory, it is (or was) a fact. | While @jqning is absolutely correct in stating that truth is always an "absolute defense" to a claim of defamation, keep in mind that truth can be a subjective thing. What is one person's version of the truth, may not be another's, even with regard to the same exact experience. Also, while "statements of opinion are not defamation" is typically regarded as true, it has very broad exceptions and is not something that can be relied on in isolation. Defamation is generally defined as a false, published statement that is injurious to the plaintiff's reputation. An online posting, even on an obscure website, will likely be seen by a few people, thus satisfying the publication requirement. A plaintiff cannot succeed in his or her online defamation claim if the defendant's defamatory statement is true. So, for example, if a customer posts a review of your restaurant on Trip Advisor claiming that there were roaches crawling around, you may sue them for defamation. You would then have to prove that there was no roach infestation, and thus, the defendant's statement was false. However, what if there was only one? What if he has a witness who saw it? His truth may be different from yours, and it is up to the trier of fact to decide. Also, getting sued, whether or not you prevail, is at minimum a pain and can be a very expensive ordeal. Opinions are exempt? OK: Following that line of reasoning, restaurant owner shows he's had monthly inspections and prophylactic measures to ensure against pests and the exterminator testifies. The defendant, fearing he's in trouble now, claims that his assertion of roach infestation was just his opinion based on his experience. Opinions are privileged under the law of defamation, right? Not always! Importantly, an opinion may be viewed, generally, as a statement of fact (employing the "reasonable person" standard) if it is something that is either provable or disprovable. What this means is that if the reasonable person would construe your statement to be factual, and not mere opinion, it will be deemed as such and if untrue then you're liable for defamation. The courts may interpret, "I think that [restaurant] has a roach infestation problem," as a statement of fact. This has occurred in numerous cases where people think they can say what they want as long as they couch it as an opinion, with words like "I think..." or "In my opinion...". But when someone says something that factual in opinion form, that is not protected. So, if Jane says, "In my opinion Joe Schmoe is a pedophile..." without absolute proof that Joe is, in fact, a pedophile, then this is libelous (defamation if published or spoken to another). This is because the statement in and of itself is one of "verifiable fact couched in opinion" and it is so damaging to Joe's reputation that if it's not true it is libel per se (defamatory if published – meaning shared). A statement of verifiable fact is a statement that conveys a provably false factual assertion, such as someone has committed murder or has cheated on his spouse. While the law varies some, and sometimes substantially, from state to state, here are some often used examples arising from California courts. Libelous (when false): Charging someone with being a communist (in 1959) Calling an attorney a "crook" Describing a woman as a call girl Accusing a minister of unethical conduct Accusing a father of violating the confidence of son Not-libelous: Calling a political foe a "thief" and "liar" in chance encounter (because hyperbole in context) Calling a TV show participant a "local loser," "chicken butt" and "big skank" Calling someone a "bitch" or a "son of a bitch" Changing product code name from "Carl Sagan" to "Butt Head Astronomer" Since libel is considered in context, do not take these examples to be a hard and fast rule about particular phrases. Generally, the non-libelous examples are hyperbole or opinion, while the libelous statements are stating a defamatory fact. Modified photos that can be shown to scandalize persons or businesses are clearly defamation, and are quite popular on social media. So, for example, if you threw the flyers (I assume you didn't but as an example) all over, and then photographed and published your opinion about the business littering neighborhoods, this would be libelous. The less obvious and absurd the modification, the more likely it is that a court will find it defamatory. So, a picture of a woman with a man's naked torso photoshopped on will not be defamatory, a version photoshopped showing what is to be purported to be her naked body, is. In your case, you face two issues that you should ask yourself: Is your opinion really verifiable (or non-verifiable) facts couched in words that try to make it opinion, or is it truly just your opinion. If fact, is it absolutely true? If the answer is yes, it's fact and yes, it's absolutely true, you're OK. Keep in mind though what I mentioned about truths differing: What if the business didn't know they were put there, or, what if they were placed on cars in a public place and blew in the wind? That could be a problem. While you are most likely fine, you may want to just say, X business's fliers are all over the place, littering the neighborhood and (assuming you called and asked them to pick them up, or wrote them) they refuse to pick up the litter. It sounds like the statements you made are fine, because you don't say that the business littered, or that they put them there; you say they are "plastered" all over, but you don't accuse them openly. That isn't to say it wouldn't be found to suggest fact that they would have to show isn't true (or that they didn't get permission from the property owner). My point is only that, in general, be careful. If he felt that you misrepresented what he did by way of distributing fliers, or if he thought you doctored the photo or set it up, he could sue you if he felt it damaged his business's reputation. | A person isn't required to state their evidence that the claim is true when they make the claim, and as a public figure, a defamation suit filed by Trump would be judged under the stronger "actual malice" claim, meaning that the statement was made with knowledge that the claim is false or with reckless disregard of whether it was false. You would have to look at the specific statement. It is generally not defamatory to hurl insults like "rapist!", "pedophile!", "criminal!" etc. against a public figure especially a political figure, since such word don't generally amount to an actual accusation of wrong-doing. On the other hand, a detailed but false claim purporting to relate factual events could cross the threshold. Hyperbole is not actionable. | If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed. | If you are Donald Trump posting under an assumed name then it is illegal, because he is currently president of the USA and not supposed to run any businesses. If you are not Donald Trump, then be aware that Donald Trump owns a trademark for "Donald Trump" according to this site https://onlinetrademarkattorneys.com/donald-trump-trademarks/ so you will be infringing on his trademark. | The law you cite says that the Secretary shall furnish such committee with any return or return information specified in such request That includes specific individual returns. That it was intended to include such returns is made clear by the provisions restricting identifiable individual data to executive session. Whether this ought to be the law might well be debated. Whether the House ought to use this law as a way to get at Trump's returns could also be debated. Those are matters of politics, or perhaps ethics, not law. Whether some other provision of law overrides this provision in this case is pretty clearly going to be argued in court, and we will see what the decision is. I won't try to predict it here. | Such a lawsuit will fail The CAN-SPAM act applies to commercial emails. The emails you describe are political emails and outside its jurisdiction. All you can do is tune your junk mail filter. |
Can I let myself out of a prison if I buy the prison? Let's say I'm convicted of a felony and sent to state prison. Then, I buy the prison. Can I just let myself out? | Not legally. Private prisons are operated under a government mandate (typically via a contract with the government). That said, depending on jurisdiction, there are plenty of scenarios where a prisoner is legally permitted to leave a prison. This can include work release programs, work details controlled by the prison, to visit sick or ill relatives, as part of a rehabilitation program (e.g., to attend an education program), etc. How much of these forms of release can be manipulated by a private prison likely varies by jurisdiction. Of course, some of the relevant decision makers may have a preference for keeping the prison owner happy, even if the owner has no direct influence. Mind you, it is probably difficult to get into such a position. I suspect a prison operator would not be sent to their own prison (and would not want to be; prisoners might attack them). Similarly, the government would probably block a jailed felon from taking ownership of their own prison. | It is possible. If you say e.g. "On March 12 2021 I stole a steak from the grocery store at the corner of Smith St. and Wesson Ave.", that is a confession. It is voluntary and not coerced (you're not required to apply for the job), so it is admissible. It is extremely unlikely that there is any insulating provision in the job-application process ("information obtained via applying for this job will never be used against you in a court of law"). Whether or not you would actually be arrested and tried depends on the circumstances (basically, is it "worth it" to them to prosecute you). Also, what you say in the "explanation" box matters, so I gave you a clear confession to criminal culpability. Something like "I was at the store when some dude shot a lady" isn't a confession to committing a crime, it more satisfies the full-disclosure requirement. | As you said, "serious" is a subjective description of a crime, but most lawyers would probably have the same first reaction when asked to make the distinction: Is it a felony or a misdemeanor? Felonies are objectively more serious because they come with longer sentences, as well as a variety of awful collateral consequences -- lost voting rights, disqualification from gun ownership, etc. By that standard, unlawful entry into the United States (8 U.S. Code § 1325) is not, in most cases, a serious crime. For a first offense, it's a misdemeanor punishable by at most six months in jail. For subsequent offenses, though, it's a felony punishable by up to two years. I'd agree that the sentences meted out suggest that the judges don't view this offense as a particularly serious one. But that doesn't necessarily mean that it was pointless to prosecute. For instance, the first prosecution enables a harsher sentence if the immigrant lands in front of the judge again, and I'd bet that a fair share of the harsher sentences involved repeat offenders. Also, if you think that being a nation of laws means that we should always enforce every law (or if you at least believe this when it comes to immigrants), then the prosecutions are their own reward. | If you innocently took the oven glove by mistake there is no possibility of criminal consequences. Now that you know it is not yours, you must return it as soon as possible. You may be liable for the losses caused by taking the glove, and that could extend as far as some fraction of the cost of a replacement glove if they have already replaced it. You cannot (legally) hold his glove hostage for the return of your desk. Deciding which glove is which is tricky. Given the cost of new oven gloves, I would go round with both and ask him which is his. Even if he takes the nicer one which isn't his, you are only down a few dollars. The messy hall should be a separate question (and risks being closed as asking for specific legal advice - I think you need your own paid-for lawyer for that). | 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. | Under United States law, it is not illegal to simply make an account on a forum where criminal activity takes place. The closest thing I can think of would be misprision of felony (AKA failure to report a crime), which requires active concealment (see United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977)). Simply observing evidence of criminal activity and not reporting it would not qualify. However, if that forum also contains material that is illegal to posses (such as child sexual abuse material), downloading that (even by simply viewing it using your browser) could be a crime. I would note that I am specifically not advising you whether or not doing any of the other things, like making and publishing tutorial videos on how to access such sites, is likely to get you into trouble with the law. If you want that sort of legal advice, you should contact a lawyer, as the advice is going to be very specific to the exact details. | Technically, yes: Whoever willfully or maliciously injures, tears down or destroys any letter box or other receptacle intended or used for the receipt or delivery of mail on any mail route, or breaks open the same or willfully or maliciously injures, defaces or destroys any mail deposited therein, shall be fined under this title or imprisoned not more than three years, or both. That said, just because it's technically a felony punishable by up to 3 years in federal prison, doesn't mean you'll actually be punished that way. The Department of Justice's Criminal Resource Manual has a section on misdemeanor offenses that apply to postal crime: Among the misdemeanor dispositions available are: 18 U.S.C. § 1701 (obstruction of mails generally); 18 U.S.C. § 1703(b) (opening,destroying, or detaining mail without authority); 18 U.S.C. § 1707 (theft of property used by postal service); and 18 U.S.C. § 1711 (misappropriation of postal funds). When the charge might best lie under 18 U.S.C. § 1705 (destruction of letter boxes or mail) or 18 U.S.C. § 1706 (injury to mail bags) and in other appropriate circumstances, an applicable misdemeanor may be found in 18 U.S.C. § 641 (theft of government property); or 18 U.S.C. § 1361 (destruction of government property). That suggests (at least to me) that federal prosecutors are supposed to at least consider misdemeanor instead of felony charges for minor cases of mailbox destruction. Under normal circumstances, destruction of federal property only becomes a felony if the damage (or attempted damage) is more than $1,000. This is a pretty good example of how US laws are written with prosecutorial discretion in mind. In other systems, the law about destruction of mail or mailboxes would lay out when it's a serious crime and when it's minor. In the US, it's always considered a serious crime because the assumption is that prosecutors won't charge it in minor cases (in fact, official guidance to prosecutors lays out ways they can charge it without charging the felony). It's also possible to be prosecuted at the state level for this, and if you're actually a juvenile that's much more likely than federal prosecution. The feds don't really like handling juvenile cases; they normally leave those up to the states unless there's some good reason not to. Even if you're an adult, the feds may well leave the issue up to the state for prosecution. At the state level, the threshold for felony vs. misdemeanor vandalism would depend on the state. Whether you're prosecuted at the state or federal levels, there's a decent chance you wind up with at least a misdemeanor on your record. Vandalism is illegal, after all. | No If you break the law you are legally responsible. Can you make it more difficult for law enforcement to find and prosecute you? Of course, that's why bank robbers wear masks. |
paternity test in Germany I heard that in order to make a paternity test in Germany, the consent of both spouses is needed. If the husband has doubts about whether he is the father of a child born in wedlock, can he insist on such a test in order to avoid paying child support in the event of a divorce? | Yes, a father can contest paternity A man married to the mother at the time of birth is legally the father. He has 2 years to contest this in court. Without going into details, the court has the power to order a paternity test if necessary. | The first step is for the parents of the child to seek a court order for child support. This would be based on your friend being the actual father, and the non-mother not having adopted the child (extinguishing the obligations of the father). Many states, but not Michigan, have adopted the Uniform Parentage Act which covers assisted reproduction, but even in those states, this does not constitute assisted reproduction. The "agreement" is legally invalid (surrogate parentage contracts are unenforceable), and that, folks, is why you should hire an attorney rather than devising a legal theory on your own. This article summarizes the various paternity laws of Michigan. Under the Paternity Act, this may be a child born out of wedlock, if the child is a child begotten and born to a woman who was not married from the conception to the date of birth of the child, or a child that the court has determined to be a child born or conceived during a marriage but not the issue of that marriage where the meaning of the last expression would have to be determined by the court. Probably the court would say "this child is not the 'issue' of the marriage", given legislative intent. Under the Acknowledgment of Parentage Act, unmarried parent can by signing a statement "define" the parentage of a child, but the statute is specifically limited to a man acknowledging paternity, and cannot apply to a lesbian couple. The clearest statement of the law of parentage for lesbian couples in Michigan is Lefever v. Matthews where (just one year ago) the court held that both of two women were parents – but in that case, the eggs came from one of the women and they were implanted into the other woman. An important distinguishing feature is that in this case, the woman at a statutory disadvantage sought parental rights, whereas your question is about a legal parent seeking to avoid a legal obligation to the child. Courts generally do everything possible to protect a child's right to support by the parents. The prospects that an actual father could avoid that obligation are slim. | Testing the law means running a case under that law and having a court rule on it. In common law jurisdictions, the judiciary does not give opinions on whether a bill proposed or an act passed by the legislature is legal or not - they decide controversies that arise under those acts. The executive is obliged to follow the law so if they do something the law prohibits or don’t do something the law requires then someone with standing (usually someone affected by that act or omission) can take them to court and seek an order for them to stop (an injunction) or to do what they are required to do (a writ of mandamus). In the present situation, it’s my understanding (and I may be wrong) that Parliament has enacted a law that requires the Executive (in the person of the relevant Minister of the Crown) to request an extension from the EU if Parliament has not approved a Brexit deal. Testing the law would mean the Minister not doing that or stating an intention not to do it. A person with standing can then petition the court for a writ of mandamus requiring the Minister to do it. If the Minister still refuses they would be in contempt and subject to being gaoled until they did. | Is there default caste of child born out of inter-caste marriage? Short answer The child normally takes the father's caste, but it may be contested if it can be shown that the child is brought up by the mother. Long answer The case law has been evolving in recent years, the latest findings by the Supreme Court of India can be found at Rameshbhai Dabhai Naika vs State Of Gujarat & Ors on 18 January, 2012 [T]he legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter- caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. | This appears to be covered by the Norway Criminal Procedures Code, of which an English version can be found here. Chapter 10 deals with witnesses. Here are some relevant sections: § 108. Unless otherwise provided by statute, every person summoned to attend as a witness is bound to do so and to give evidence before the court. There follow a number of exceptions (spousal privilege, attorney-client privilege, state secrets, etc). None of them seem to apply to your example. § 115. The court may decide that a witness who fails to attend or who leaves the place of sitting without a valid reason shall be brought before the same or a subsequent sitting of the court. In special cases the court may decide that a witness shall be detained in custody until he can be examined. § 128. Before the examination the president of the court shall admonish the witnesses to tell the whole truth without concealing anything. He shall inform the witnesses of the liability consequent on giving false evidence or making a false affirmation. § 137. If a witness refuses to give evidence after being ordered to do so by a legally enforceable court order, the court may by a new order decide that the witness shall be kept in custody until he fulfils his obligation. Nevertheless a witness may not be kept in custody for more than three months altogether in the same case or in another case relating to the same matter. So effectively, if the witness fails to show up voluntarily, he can be brought in forcibly. He can be ordered to testify, and if he refuses, he can be held in custody (probably a jail) for up to three months. However, the authority to compel testimony is limited to courts; the police cannot compel statements from witnesses. § 230. The police may take statements from suspected persons, witnesses and experts but may not order any person to make a statement. So in your example, it appears that the witnesses would be free to refuse to speak to the police. However, if the case came to trial, they could be ordered to testify, and could be held in custody if they refused. | Depends on where you are, and what law would be broken and why. In germany, there is the concept of rechtfertigender Notstand (justifying emergency). If there is a present danger to a Rechtsgut (legally protected interest), one can take necessary and proportional steps against another legally protected interest. Say I walk through a winter landscape and there is a person who has broken through the ice of a lake (a present danger of the loss of life). Nearby is a yard with a ladder leaning on a shed. I would be allowed to enter the yard (normally trespas) and take the ladder (normally theft) in the rescue attempt (life counts for more than a ladder, using a ladder is necessary/appropriate for an ice rescue). The details are, as usual for Law SE, complicated. | 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. | The full answer is too broad (it's a 50-state survey question). Here is a starter, though. In Washington, annulment may be sought if (i) The marriage or domestic partnership should not have been contracted because of age of one or both of the parties, lack of required parental or court approval, a prior undissolved marriage of one or both of the parties, a prior domestic partnership of one or both parties that has not been terminated or dissolved, reasons of consanguinity, or because a party lacked capacity to consent to the marriage or domestic partnership, either because of mental incapacity or because of the influence of alcohol or other incapacitating substances, or because a party was induced to enter into the marriage or domestic partnership by force or duress, or by fraud involving the essentials of marriage or domestic partnership, and that the parties have not ratified their marriage or domestic partnership by voluntarily cohabiting after attaining the age of consent, or after attaining capacity to consent, or after cessation of the force or duress or discovery of the fraud, shall declare the marriage or domestic partnership invalid as of the date it was purportedly contracted But then also (ii) The marriage or domestic partnership should not have been contracted because of any reason other than those above, shall upon motion of a party, order any action which may be appropriate to complete or to correct the record and enter a decree declaring such marriage or domestic partnership to be valid for all purposes from the date upon which it was purportedly contracted So an annulment would have to fit into one of these latter unspecified reasons. Although material fraud is considered to be such a reason, the closest case (an attempt to annul based on fraud), the WA Supreme Court avoided deciding whether a particular instance of alleged fraud sufficed to invalidate a marriage, since in addition one party was incompetent and the marriage was not solemnized, as required by state law. In Radochonski v. Radochonski (1998 Wash. App. LEXIS 765), the husband sought a declaration of invalidity of marriage based on fraud in the essentials of the marriage (the allegation was that the wife entered into the marriage to get permanent residency). The petition was denied because "the alleged fraud does not go to the 'essentials' of marriage" and because he "cannot demonstrate reasonable reliance on any statements Barbara made as to her motive in marrying him". The court notes that there is only one case, Harding v. Harding, addressing what the essentials of marriage are: where one of the parties to a marriage ceremony determines before the ceremony that he or she will not engage in sexual intercourse with the other after marriage, not disclosing such intention to the other, and carries out such determination, the offending spouse commits a fraud in the contract of marriage affecting an essential of the marital relation, against which the injured party may be relieved by annulment of the marriage. The court said that fraud in an essential may be found (citing cases in other states) where one spouse has misled another on an attribute that prevents sexual relations between the parties such as impotence, venereal disease, and drug abuse, the latter on the theory that narcotics cause impotence. These attributes have gone to the essentials of marriage because they affected the sexual relations that are at the heart of the marriage but no so in the case of premarital chastity, false representations as to love and affection, misrepresentation of affection, failure to disclose out-of-wedlock children, fraudulent representation of pregnancy, and failure to end a previous relationship. So it is highly unlikely that fraud in the essentials of marriage would be found at least in Washington. |
Is the police obligated to immediately arrest anybody whilst undercover? Say a police officer is undercover (we'll stick to America). They are trying to find evidence of someone committing a crime? However, the person unknowingly admits to the officer that they plan to commit a less serious crime, (for example the police could be bust a drug smuggling operation, but the person has punched someone in the face). Is the police officer legally obligated to report the crime or are they allowed to continue on until they have found the evidence they need to prosecute for the larger crime? | Police have discretion in the enforcement of the law Which is to say, police get to decide which crimes they make arrests for, which they handle with warnings, which they report and which they ignore. This applies whether they are in uniform, undercover or off-duty. If they abuse this discretion then they are liable to disciplinary action. If they apply it corruptly or otherwise illegally then they are liable to criminal sanction. | The consequences for the US are perhaps better addressed at Politics; if you're really interested in those consequences, you can re-post this question there. For the police officer shooting a diplomat, the officer may be charged under state law, whatever is normal for an incident of this type; it doesn't matter whether the person is a US citizen or a diplomat or any other kind of alien, regardless of immigration status or lack thereof. If the person is a diplomat, however, the officer is also liable to be prosecuted under federal law, namely 18 USC 1116, which makes it a crime to kill, among others, a "foreign official"; the definition of that term includes any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee. The characterization of the response "just been revoked" as "clearly legal" is inaccurate; a police officer has no power to revoke diplomatic immunity. In fact, only the diplomat's own country can waive this immunity. The United States cannot do so; it can only expel the diplomat. | I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this. | Can someone be arrested for not being ‘nice’ to police? Yes. The arrest may later be declared unlawful, and the cop could later be disciplined by his boss, but if a cop wants to arrest you now for any reason they just can. Seems weird and an abuse of power to me. The available means of dealing with abuse of power have never been in excess. Could they win such a case? Yes. So could your friend. It depends on many many factors. | In general, yes, police could do this. I am not aware of any US state or locality which requires an officer to execute a stop as soon as a traffic violation is observed. Whether the police would act in such a way is another question, but in some areas maximizing citation revenue is a high priority, so police in such areas might act in such a way. If police think a person's actions are "suspicious" and think that the person might be involved in some crime more serious than a traffic violation, it would be common procedure to follow without making a stop or arrest to get a better idea of what the person was doing. Many police I have encountered seem seriously concerned to stop someone driving in what they consider an unsafe way as quickly as possible, and so stop violators promptly, but I don't say that motivates all police all the time. | In most US States (probably all of them) failure to follow the Lawful orders of a police officer is itself a crime, and is grounds for the officer to arrest the person, even if the person had not done anything wrong prior to that. This obviously leads to the question: what orders are lawful? The officer has a pretty broad range of discretion. Ordering a person out of a car, or to roll down a car window, is pretty clearly lawful. Ordering a person to commit a crime would not be lawful. Neither would ordering a person to submit while the officer rapes or robs the individual be lawful. In practice, the officer will usually think that all of his or her commands are lawful, and might feel threatened by any failure to comply. In which case, the officer might shoot. This might not be upheld later if the command was not lawful and/or the officer's fear was not reasonable, but that will do the person shot little good. It is usually wise to comply with any commend, unless it puts you very directly at serious risk. Remember you don't know what else has happed to the officer that day. Has the officer had a fight with his/her spouse that morning? Just been denied a promotion? Been turned down for a mortgage? None of that should matter, legally, but it will affect the officer's attitude, and can lead to escalation, even if the person stopped is in no way at fault. An instruction to "shut up" is probably not going to provoke an officer to shoot if it is disobeyed, but it might help to escalate the situation. It is probably lawful, depending non the exact circumstances. As to the first amendment issues, that would probably come under the 'time, place, or manner" regulations that may be applied to speech. And even if it is not held to be lawful, the time to contest it is in court, not during the stop. If the officer feels safer with the window fully rolled down so that the officer could reach in, that is probably a lawful command. | The answer provided by Dale M is half right, but there are a few things that I think are wrong. Firstly, the actual reality of the situation doesn't matter. What matters is that you act in a reasonable manner, performing assessments of the situation as a reasonable person would do. If you misread the situation, and end up killing a police officer that was acting in a lawful manner, it doesn't necessarily mean you were acting unlawfully yourself. Because police officers are generally exposed to situations where they would be forced to use their firearm, that obviously would impact how a reasonable person would see the situation, but the test for reasonableness would not go out the window. In addition, even if you were found to not be acting in a reasonable manner, there is certainly a question if you would be found guilty of a lesser charge of manslaughter rather than murder. It's possible the self-defence claim would be upheld as an imperfect defence. | The answer is somewhat similar to the "corollary" question, in that this wouldn't be the only information taken into account at a motion to suppress and one would need know why the officer requested (in your scenario demanded) to search you in the first place. There are scenarios whereby he could search you without benefit of a warrant. Was he chasing you from a crime scene? Were you attempting to flee? Did he see something illegal before demanding the search that may have made it legal despite you thinking it not? The analysis is different if you are in the car versus in your house. That said, regardless of where, a consent search is just not likely to happen in this way. In your car, the officer has the right to take your keys to "secure the scene," or if there is a reasonable suspicion that you may attempt to flee. Typically, the officer will say "turn off your car" without taking your keys. Despite what's typical, though, they certainly can take your keys if circumstances make it necessary and that (the mere taking of keys) does not constitute a search. Keep in mind that the police can search a car without a warrant in a number of circumstances, without your consent, that would not be available to them with a dwelling. Courts will typically give police much more latitude to search a vehicle than a home. Under the "automobile exception" to the search warrant requirement, individuals have less of an expectation of privacy when driving a car and there is also a much greater chance of losing the evidence in a car vs. a dwelling, since it's mobile. Generally, the police can search your car if: You have given the officer consent (in this scenario you've not – unless you hand them the keys without protesting – and then this would be considered implied consent); The officer has probable cause to believe there is evidence of a crime in your car; The officer reasonably believes a search is necessary for their own protection (e.g., they can search for a weapon, if they have reasonable suspicion); You have been arrested and the search is related to that arrest (such as for drunk driving or for drugs, they can search for alcohol or drugs). There are tons of contextually specific rules that dictate when each of these situations is OK, and when they're not, as well as where they can search under what scenarios. It is not a one size fits all analysis. In fact, warrantless and consent searches may be some of the most variable analyses criminal attorneys and judges undertake to explore. The law on these topics is voluminous. Searching your car after you've given the officer the keys, assuming there was no basis and you actually said "you're not consenting," can result in suppression, but not necessarily as the fight is a lot tougher when it comes to a car. (E.g., if you said no earlier, but then handed the cop the keys later without renewing the objection, this could be considered an implied consent.) Similar to the other question, there is also going to be a whole other side to the story, with evidence aside from your testimony dictating what the ruling will be. A dwelling is different from a car, although your question makes some assumptions here that I would find very hard to see happening in real life (having represented both police, municipalities, and defendants to criminal searches).... It would be highly unlikely for an officer to threaten to break in like this ... especially in a dwelling where neighbors and passersby can see what's happening and would not only watch, but would probably video it. This is not to suggest that threats and actual wrongdoing doesn't happen, it's just not typically in this way. Police know the law. They rarely do things so blatantly unlawful that not only will nearly ensure that any evidence is inadmissible, but (in a case like this) where they will also probably lose their job. Short of a pursuit where the police are chasing someone into a house, I have never heard of a forced entry in a situation like you're describing. While we don't know the circumstances leading to the encounter, I am assuming that the search isn't pursuant to a chase, since you're having a discussion with the officer and if you're chased from the scene of a crime and run into your house, they're coming in. They are not having discussions. However, since we don't know what the circumstances are that lead to you being approached in the first place, it's difficult to analyze whether he has the right to enter warrantlessly. What we do know is that with a dwelling, it is much less likely to be lawful. As with the other question, the analysis as to whether consent was given or not is far from simple. Suspects are much less likely to give consent to search a dwelling as they are a car, and if they do, the search is often limited to a certain area, so chances of suppression are much better. That said, others will often give consent to the police when requested of them (spouses, kids, landlords, hotel owners, etc). Just imagine ... there are literally thousands of warrantless searches done every single year in the U.S., nearly all of which are alleged to be based on some form of consent. Assume every one of those people has a lawyer; that means nearly every one of those cases is arguing the consent was bad, some way, some how. Duress is one of the most common arguments when someone gives permission; either explicitly (like what you are proposing), implicitly (they came with 10 grimacing cops, so the guy thought he didn't have a choice). Most of the time, however, there is no duress, people just simply didn't know they can say no, or they think the cops won't find what they're hiding. Cops can do a lot of things to get you to allow for a warrantless search. They can even lie to people to get them to consent, and officers are not required to notify the suspect that he has a right to refuse to consent (however, telling the suspect they have the right to refuse is helpful to rebut the coercion argument). In United States v. Mendenhall, "The fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive." Keep in mind, a big part of the reason why these scenarios are unlikely is not just that the police can find a way in that won't be so challengeable, if they really can't get a legitimate warrant and need to find a deleterious way in. It's also because 9 in 10 times when a police officer does a consent search, the suspect signs a consent form. That's not to say that people don't get coerced or get searched due to duress, they do. But typically not in so blatant a way. There are shades of grey in most of these cases. So, to answer whether you can get the search suppressed if it leads to an arrest under these facts; the only answer that is definite, is that nobody can be sure. If consent searches, their exceptions, and all ways the evidence gets in and the evidence is kept out interests you ... read these two law review articles. There are probably 200 cases footnoted between them! http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/MaclinT011508.pdf http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-81-6-Sutherland.pdf |
Do domains typically have to be declared in bankruptcy proceedings? I've been trying to research this, and so far all I've found is a lot of academic legal essays concluding the law hasn't really caught up to the technology. Do domains typically need to be declared when filing for bankruptcy? I'm not talking about domains worth thousands of dollars or anything, just an obscure domain worth the $10 or so that was paid to register it. | Do domains typically need to be declared when filing for bankruptcy? Yes. Concealment of registered domains may be grounds for denial of discharge. See In re Money Centers of America, Inc., (U.S. Bankruptcy Cort, July, 2019) ("the registration of the domain name is an ownership interest that should have been disclosed"). See also In re Luby, 438 B.R. 817, 829-830 (2010): courts generally hold that domain names are subject to the same laws as other types of intangible property [...] And as such, it must be reported on a debtor's bankruptcy schedules. (citations omitted). The Luby opinion reflects that materiality of a domain is more relevant than the cost of registering it. | While the state, or a creditor, can initiate a probate if no one else does (if the state does so, the official in charge of this is called the "public administrator"), neither are required to do so. Also, sometimes a guardianship is converted to a probate, but this doesn't appear to have happened. This is a thankless job that probably doesn't make sense to bother with if estate liabilities exceed the assets of the estate, but most states have a "non-claim statute" that bars creditors claims, other than liens including property tax liens, after a certain amount of time after the death. So, even if the estate may have been insolvent at death, if enough time has elapsed, many of the potential claims may now be barred, making the estate solvent again. Siblings generally have priority for appointment over a nephew, so to be appointed yourself, you would ordinarily have to receive a renunciation of their right to serve as executor before applying to do so yourself, but some states disregard that priority if no one has taken action after a certain period of time. You would initiate probate by contacting an Alaska lawyer in the vicinity of the place he was domiciled at death. The lawyer can review the guardianship court file, determine if an executor was appointed, and determine if there are assets that could justify opening an estate relative to lien debts including Medicaid liens. If there are not, letting the assets be lost to a property tax lien may make more sense that spending money to transfer his property in an orderly fashion to his creditors with nothing in it for any of his family. | It is not critical, however, it can help and it can't hurt. You own the copyright and if you were to take legal action you would need to prove this - the notice is evidence you can use to do so. Note that some jurisdictions (including the US) require registration of copyright before commencing legal action and that damages only accrue from the date of registration. A more significant issue is: what rights does the website owner have? They may believe that their contract with you involved a transfer of the copyright to them: did it or didn't it or doesn't it say? | It is hard to tell what the statement in the OP that "95% of the contract disputes are won/lost directly by the contract itself" was intended to mean. It isn't literally true. A breach of contract claim requires a showing in every case of (1) the existence of a contract giving rise to a contractual duty, (2) an unjustified breach of one or more of its valid terms, and (3) to recover more than nominal damages, a showing of the amount of damages caused by the breach. In the simplest of breach of contract cases, say, a promissory note default case, proof of the existence of a signed original promissory note, and business records regarding the defendant's payment history establish all of these elements, and establish a prima facie case that the defendant is unable to seriously contest. One possible intended meaning of the statement that you are paraphrasing is that usually the existence or non-existence of acts allegedly giving rise to a breach of the contract are undisputed and that the litigation primarily boils down to what the contract required in the fact of undisputed extrinsic evidence of breach of contract. This is not my experience. The overwhelming majority of contract lawsuits are basically collection actions for non-payment of an invoice, for foreclosure of a lien, or for eviction for non-payment of rent, in very simple transactions, where the party with a payment obligation has undisputedly failed to perform and the performance by the party to whom payment is due is not seriously disputed either. Probably 90%+ of contract cases have this character and are resolved by default judgment. A majority of the remaining < 10% of contract cases settle with the plaintiff getting some payment or acknowledgment of debt from the defendant, usually with payment plans reached primarily based on considerations mostly related to ability to pay (which isn't legally relevant but is as a practical matter critical in the subsequent collection stage), even if there are minor or unlikely to succeed disputes over liability and damages issues on the merits. Somewhere on the order of about 0.4%-4% of contract lawsuits involve cases where there are bona fide dispute regarding whether payment was made, or whether there was a legally recognized justification for non-payment such as the failure of the party to whom payment is owed to fully perform their obligations under the contract. The interesting cases usually involve disputes over whether someone earned the amount that they sought or instead failed to perform as agreed in some manner other than payment. When there is a written contract, in the overwhelming majority of cases, the validity and terms of the written contract are undisputed, and efforts to argue that there were any side agreements or subsequent modifications of the original written contract are very challenging to prevail upon. Disputes over breach and justification for breach are more common than disputes over the terms or meaning of a written contract, even though these are certainly disputed sometimes. And, of course, there are frequently disputes over whether there was a contract, and if so, what its terms were, in the case of express oral contracts, and contracts that are implied-in-fact or inferred from the course of dealings of the parties. Another possible interpretation of the paraphrased sentiment is that usually the language of the contract determines what your rights are in a case. Certainly, the rights of the parties usually do boil down to what the language of the contracts requires. Some Statistics The Colorado state courts publish an annual report with statistical data every year. The annual report for the year 2017 was typical. In District Courts (the courts of general jurisdiction) there were 247 civil bench trials (about a quarter of which are tort cases), and 218 civil jury trials in civil cases (about three-quarters of which are tort cases), which consist mostly of contract cases, but with a minority of tort cases and property rights case and cases involving statutory rights (it excludes evidentiary hearings in domestic relations or mental health or probate cases, or pre-trial evidentiary hearings such as hearings on preliminary injunction requests, eviction hearings, non-judicial foreclosure summary hearings, and criminal or quasi-criminal trials, hearings and cases) out of 89,632 civil cases filed. About 12,000 of these are contract lawsuits (52,000 are pro forma tax lien filings). Thus, there are about 240 contract case trials out of about 12,000 contact lawsuits, with about 2% of contract cases going to trial (about three-quarters of the time before judges instead of juries) (this excludes a very small number of disputed contract claims adjudicated within probate cases each year). In County Courts (the courts of limited jurisdiction for claims under $15,000 in 2017), there were 801 civil bench trials, 14 civil jury trials, out of 140,462 civil cases filed (the vast majority of which are breach of contract cases and 98%+ of which are decided by judges usually in trials of one day or less, instead of juries), with about 0.6% of contract cases going to trial. This counts evictions as well as straight out contractual debt collection lawsuits as contract cases. There were and 1,657 small claims court trials (always before a judge rathe than a jury and limited to disputes of $7,500 or less with limitations on lawyer involvement) out of 7,118 small claims cases filed, but the mix of cases is very diverse so mapping that to resolution method isn't really workable, even though more than half would be contract cases. Essentially all of the small claims cases that don't go to trial are default judgments and day of trial settlements. By comparison, there were about 460 federal court contract cases filed in Colorado in 2016 (about 0.3% of all contract cases filed in Colorado in any given year). These cases go to trial at a rate similar to the 2% rate for state court of general jurisdiction contract cases (perhaps 7 bench trials and 2 jury trials a year) (this figure excludes bankruptcy court cases which each have multiple disputed or undisputed contract claims within them). Certainly, it would be safe to say that less than 1-2% of contract lawsuits filed in Colorado go to trial. In all cases that don't go to trial, there was a default judgment (most common), settlement (next most common), or resolution in pre-trial motion practice (least common but more common than contract cases going to trial, let alone a jury trial). | You're misreading the law. You need to keep reading the section you referenced (emphasis added): The disclosure...shall be made in writing and delivered through the consumer’s account with the business, if the consumer maintains an account with the business, or by mail or electronically at the consumer’s option if the consumer does not maintain an account with the business Thus, the option to have the disclosure sent by mail only applies to consumers who do not have an account with the business. Since presumably a large number of sites only maintain personal information for users with accounts, such sites need not provide a mail option. Further, it doesn't say there needs to be a button: you just need the ability to say you'd like it mailed to you in the request somehow, and then they need to comply when you do. | In Uzuegbunam v. Preczewski (2021), the US Supreme Court addressed a case that sought one dollar in nominal damages. I'm assuming you mean only claims involving money damages as a remedy, because there are many claims every year involving no literal money damages and the remedy sought is some other kind of relief (although such relief would still have practical or economic value). | 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. | It isn't explicitly prohibited so long as the amount claimed is in the aggregate less than $20,000. But, it would probably be better to file separately. First, very simple single party, single transaction cases are what small claims court is designed to do, and going against the flow often creates unforeseen confusion for the judge in the Justice Court who isn't a sophisticated civil litigation expert. The Justices of the Peace who preside over Justice Courts that handle small claims cases in Texas often aren't and don't have to be lawyers or even high school graduates. Second, if you sue as a group, and one of your group is the lead person handling the case (and that person isn't a lawyer), the lead person is at grave risk of being found to be practicing law without a license by taking actions in a lawsuit on behalf of your fellow plaintiffs. |
How do people publicly admit to criminal activity and not typically get arrested? I've noticed that people on YouTube and even on TV would sometimes say things like "I used to take lots of coke a few years ago" or "I used to smoke weed daily until this and that" or "Yea, I smoke weed every once in a while," or "I used to pirate games a lot when I was a bit younger" or "I used pirated Windows and Photoshop until I got a job," etc., etc.. Basically they are confessing to a crime, on public record, couldn't anyone come after them? They've already confessed - technically all that would have to be done is a trial. In these cases: possession of coke, weed, pirating games and software. In some cases - admittance that they will do it again soon - smoke weed ("I smoke it once in a while"). I just keep wondering every time I hear or read it... I thought finally it's time to ask people who know what they're talking about and who may be able to satisfy my curiosity and help me understand. Hope the tags are right. | Unless the Youtube Video shows them committing a crime, then no, they couldn't be arrested and tried for a crime. Them saying it, not under oath, is just hearsay that has no evidentiary value unless there is already other evidence they have committed a crime. In that case, its an admission. But there must be other, either circumstantial, or actual physical evidence of a crime. Past intoxication is not a crime, either. Possession of drugs, if caught with them is. But saying you got high is not. People have walked into police stations and confessed to murders. But with no evidence, no body, no name of a missing person, they can't even be held after the holding period for investigatory purposes expires. If the video shows them committing assault, or breaking and entering (there actually are idiots who post this stuff), the video is actual evidence of a crime and it is often used against them. The statements can be used to begin an investigation, but people don't usually confess to anything worth pursuing even an investigation. The fact that someone says they used to do something criminal is not enough. For all you ( meaning anyone ) knows, the statute of limitations has expired because they "pirated games" 10 years ago. Your comment is right on. | The purposes of criminal justice include (this list is based on the Sentencing Act 1991 in Victoria): Deterrence Rehabilitation of offenders Denunciation ('this behaviour is wrong') (Retribution can also be a purpose.) What the question is talking about is rehabilitation. As discussed in the book 'Starship Troopers', you can't expect a person to improve their behaviour if they are not shown how. Some simple examples in practice include violent offenders being sent to anger management classes, or bad drivers being sentenced to remedial training. Why aren't all offenders put into rehabilitation programs? Some reasons include: Cost. It would be very expensive to offer all the rehabilitation which would help all offenders. Often this kind of thing is court-ordered, so if the judge does not know about relevant programs or does not assess the offender's needs correctly, then the offender will not be sent to them. The offender is unwilling to participate in programs that are available, and there are limits to how much coercion a given society is comfortable applying. There is no 'one size fits all' rehabilitation. Some people need to talk about what makes them use drugs, others need to talk through their childhood issues, others need training so they can get a job and not fall back into bad habits when they are released from prison. Perhaps North Korea has a great curriculum for putting lots of people in a camp and they come out model citizens, but I'm not aware of the details. Can a person really be forced to do anything? Even the army can't do that. The army might put you in prison, but that's redundant for a person who is already a prisoner. You can always threaten to kill them, I suppose, whip them, or brainwash them with electrodes perhaps, but that depends on your principles as a society. I think it's fair to say that, these days, the trend is towards what the question suggests, which is putting as many offenders as possible into rehabilitation. In 2014 it was reported that Texas took the money it would have spent on building a new prison and used it on rehabilitation instead, and there were suggestions that that worked well. | This is actually a very complicated question, about (1) the scope of "knowingly", (2) what kind of "intent" is required for conviction, (3) how does the jury understand and evaluate concepts of intent and (4) how does an attorney persuade the jury that the situation does or does not satisfy the particular intent requirement. One thing we can dispose of quickly is the possibility that the law says that the accused has to actually know that the act is against the law. It is a standard legal fiction (2,400 years old) that the accused knows the law, or should have known. As for the 4th element, persuasion, on the strong side we have statements of intent by the accused – "And I pulled out my rifle and blew his head off, and I laughed the whole time". What the jury has to decide is whether the accused had in mind a conscious purpose of doing some act (that is, it wasn't just an accident like butt-dialing, or an instant stimulus-response reaction to some event). "Intent" generally falls in the realm of acting "purposely", which the Model Penal Code §2.02 defines as: A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. which more or less means what you think "with intent" means. That doesn't say what they intended to do, it just distinguishes intent from negligence and accident. The prosecutor would then present factual evidence that the accused had a bad intent, like showing that he actually made an attempt to access credit card account data (that such data had been accessed when he broke into the system), etc. We can sort of dispose of the other scope question about "knowingly", namely, what things would he have to know? The chunk accessing a protected computer without authorization can be interpreted in a number of ways, having to do with which elements of the clause are known to the accused. You might know that you were accessing but not know that you were unauthorized; you might know that you were accessing and unauthorized, but not know that the computer is protected. The only reliable way to know which is which is to study the case law on a statute and see if there is a controlling decision that say e.g. that you have to know that you are accessing and are unauthorized, but you don't have to know that the computer is protected. I haven't determined (yet) is there is decisive case law on this, but I'm betting that the outcome would be that not knowing of the protected status of a computer carries no weight. As for what kind of intent, there is a distinction between "specific intent" and "general intent". The distinction comes down to having some evil purpose like "make him suffer" (general intent) versus a specific evil purpose like "kill him". Finally, the people who actually decide, the jury, will be given instructions that say what they have to look for. Here is the tip of the tip of the iceberg, from California's criminal jury instructions. The judge will say... The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required. A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable. and then there will be some specific elaboration of whether they have to find that the accused just generally intended to do bad, versus intended to specifically defraud. | Hope you have a good prosecutor and a sympathetic judge "They asked repeatedly how much she had to drink ..." Objection: Asked and answered "how she could claim not to remember certain details" Objection: Calls for a conclusion/speculation. The witness is not a brain scientist, she cannot speculate as to why people remember some details and not others. She is testifying as to what she does remember, not as to why she doesn't remember things. "asking if she had not been flirting with him in the days before the incident" Objection: Relevance. Is the defense seriously suggesting that flirtation, if it happened, in the preceding days amounts to consent at the time of the incident? "asked her why she had not chosen a more modest one" Objection: Relevance. Is the defense now suggesting that what the witness wore amounts to consent? | 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. | Once a case has been commenced, you can definitely lose, or you can probably lose. If you decline to proceed, you definitely lose. If you proceed, the jury (or judge as the case might be), might find some witnesses more believable than others and might find that the forensic evidence is not as convincing as it seems. Empirical evidence suggests that criminal trials reach the correct conclusion in about 90% of cases that aren't resolved on an uncontested basis. Generally speaking, the Crown is only going to press a case where the prosecutor subjectively believes that they are correct that the defendant is, at least, guilty of something. So, a Crown prosecutor can also justify "rolling the dice" in a case with a low probability of winning, because at a minimum, a factually guilty defendant (whether it can be proven beyond a reasonable doubt or not in a particular trial with a particular finder of fact) has to suffer through a trial which is a form of punishment (particularly if the defendant can't secure pre-trial release). Also, while the Crown prosecutor ultimately represents the state and not the victim, the victim of a crime is a quasi-client and sometimes a victim who often has personal knowledge of a defendant's factual guilt, really wants to have their "day in court" and a chance to present their case to the public for all to hear. Law enforcement officers working on the case may want it to go to trial for similar reasons. Strategically, bringing even weak cases to trial also makes a Crown prosecutors threat to go forward with a trial even in a seemingly weak case more credible and that can increase the prosecutor's negotiating power. Also, a trial always reveals information, and sometimes the information revealed in a trial that is lost can provide value in future law enforcement efforts. Finally, prosecutors are humans and people, in general, don't like to admit their own mistakes. So, they may go forward even when their case is weak because they don't want to admit that they were mistaken and would prefer to have somebody else say they were wrong than to admit error. The personality type that doesn't admit mistakes is pretty common in this area. | You are wrong that they never get into legal trouble. It isn't terribly common but it certainly happens to those that get relatively prominent. Many of the folks doing the copyright infringement are judgement proof. It makes little sense for Disney, for example, to sue some guy living in his parents' basement for uploading a clip of their movie when that guy has no assets. Financially, it wouldn't be worth the cost of a lawyer. Many of the folks doing the copyright infringement are in jurisdictions that look the other way. If you're a Russian citizen pirating content owned by American companies, the Russian authorities aren't going to cooperate and arrest you and the American companies likely can't recover any judgement they'd get because you don't have any assets in America. There is a whack-a-mole problem. If there are hundreds of people posting pirated content to Facebook and each one is running hundreds of pages, that's tens of thousands of pages posting content. By the time you identify and close all of them, the pirates will have created tens of thousands of new pages. There is a cat-and-mouse problem. Copyright owners have automated tools to scan for their IP to issue takedown notices. Piraters know this so they modify the video (posting it as a mirror image or adding some additional video elements) in order to evade the automated tools. If copyright owners have to manually identify pirated content, it's realistically not cost effective to do so. The humans finding that content would cost more than the business loses in revenue to pirates. Tracking down the actual human/ business behind the copyright infringement is often a fair amount of work and may involve motions in courts in multiple countries. That work tends not to be highly prioritized by law enforcement. If you're a small fish, it is unlikely that anyone would go to the effort of unmasking you in order to sue. | 1. I want use a friend who has no legal training as my "counsel," do the police have any legal recourse from allowing me to talk to him prior to interrogation? E.g., can they insist that my counsel be a member of the bar in the state where I have been arrested? Yes. If they don't want you to, you cannot talk to a friend, only a lawyer. If you got an OUI, and you're not being a jerk, they will probably let you talk to whomever you want (within reason – it's not social hour). However, they can keep you from speaking to anyone but a lawyer as that person could gain information from you that can corrupt their investigation. (E.g., they arrest you with 10 lbs. of methamphetamine. They know it's "fresh" and likely came from a local lab that they suspect you of running. You cannot be allowed to talk to just anyone, as they could help get the lab broke down, moved, destroyed). In TV shows you see attorneys doing this type of illicit thing, but in reality that is very rare. When you enter the police station to speak with a client, you must present your bar card (license to practice). Friends are not allowed in, even if you value their counsel – they are not counselors! 2. I want to consult a "team" of qualified counselors. Are there legal grounds or regulations to limit the number of individuals I consult prior to interrogation, and who I have present during interrogation? No. You can have your entire legal team with you, while preparing for court, or while being questioned, within reason. They do not need to rent a conference room to fit your 30 person legal team, but if you want 3 or so lawyers in with you, and you can afford paying each $250-$500 per hour, then have at it. Most lawyers would counsel you against this, as it creates an undue impression of limitless (hence likely illegal) funds. (But if you're a hedge fund manager, and you can show your money is legally earned, it's really your choice.) I have had occasion to go in to meet a client with co-counsel numerous times (especially in early years of practice when there is a lead attorney and second chair, so to speak, even for interrogation (which means silence by the client). They can "impede" access to some extent, though they typically don't. They can play games with your lawyer and make them wait and make you wait, but not while they are in with you, and only for so long. Once your lawyer arrives they should leave you alone. (Some courts say once you ask for counsel they need to leave you alone, but this only really matters if they get a confession from you (or any evidence) before you've (and this is what they're hoping for) recant your request for counsel and your right to remain silent.) 3. Can my contact with counsel be proscribed in any way? E.g., can the police limit the duration or schedule of contact with counsel? Can they impede or delay access to me by someone who claims to be my counsel? Once you've called your lawyer, they need to to let him or her meet with you for a reasonable amount of time before questioning. This is typically a quick meeting, just long enough to make sure you will not say a word. Even completely innocent people should keep their mouth shut – innocent people do occasionally get arrested and convicted! No matter what the police say, there is no benefit, ever, from talking to them. Some police, who know it's their last shot to get a confession and know once your lawyer gets there will never talk to you again (and they have enough to go forward without your confession in the event you just start blabbing "you did it" before they can get you to invoke your rights) will keep talking to you and tell you not to comment, just to listen, even while your lawyer sits outside. They can say you're being processed, or there's a security issue, any number of reasons for short delays if they need it. They will then go on and on about "how they can maybe help you out if you talk now, but once your lawyer arrives all bets are off." These are just tricks to get you to recant/revoke your rights and to obtain your confession. You will usually see your lawyer shortly after arrival. Can they impede or delay access to me by someone who claims to be my counsel? Yes, if your lawyer doesn't have adequate ID or cannot verify he is licensed in that state, or in another state and with local counsel. The police do not have a duty to research your lawyer's credentials, and don't have to go online and look your attorney up in the bar directory to make it easier for him or her to get to you. However, if they know the attorney, and he or she forgot his bar card, they would probably lose the confession if you confessed while they make him go get it. Most lawyers carry their bar card in their wallet, so this is not a typical problem. 4. What do police have to do to facilitate my access to my desired counselor(s)? E.g., how long can I be held after requesting an attorney without being allowed to attempt to contact one? You have a right to contact a lawyer. There is no explicit right to a phone call, although some form of contact is implied. Hence, you can usually be held 3 hours before they have to let you "contact" someone, and this is after processing. You can be held until your lawyer gets there or until your arraignment, whatever comes first. If your lawyer doesn't show up, you will be given another opportunity by the court to get your lawyer of choice there for arraignment. If you can't, and you don't want to go forward, a public defender will move to waive your right to a speedy trial and seek a continuance until you can get your counsel of choice there. If this happens, consider getting a new lawyer. What means must I be granted to find and contact the counsel of my choice? This actually differs depending on where you are and what you did. Again, you have a right to counsel but they can determine how you get this done. Sometimes there are local laws that say you get any number, or 3, or 1 completed phone call to reach your counsel of choice. If there is an overriding risk that you will call someone to communicate information that could put the investigation in jeopardy or would be adversely impact their evidentiary value in some way, even when these laws exist the police can refuse you direct contact with anyone and may implement a strict "they call" policy, where they will call the lawyer and tell them, or call your family to let them know, and they can call the lawyer. They cannot hold you for a protracted amount of time without giving you some way to get word to a lawyer; it must be reasonable. There is not a lot of law out there about what is not reasonable, because the police know, and for the most part accept, that once right to counsel has been invoked they are done. There is case law saying that 3 hours is reasonable. What is not reasonable? That is fact dependent. |
Are US laws against vote buying unenforceable? In the US, there are laws against vote buying (having people pay other people to vote for themselves or their favorite candidate). However, this law seems like it is unenforceable because of the sacrosanct nature of ballot secrecy. What I was thinking is that there was a computer program that uses Monero (or something like it) as a currency. The buyer would pay the other person a set amount to vote for Party A (the program does not allow the opposite, but it is open source so someone can reverse it). If the person receives the amount they were asking for, they would vote for the Party A candidate. But, if they don’t they sit out or vote for Party B to show that they didn’t get the money they asked for. If such a computer program existed, would using it against the law? Also, does the use of an anonymous currency make it more unenforceable because of the above reason and its anonymity? Note: the people in this site would vote for Party A if the site did not exist. | The federal law, 18 USC 597, states that Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate; and whoever solicits, accepts, or receives any such expenditure in consideration of his vote or the withholding of his vote shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both. It is not required that the prosecution prove that the recipient voted at all. You just have to make a payment or offer of payment, and you just have to agree to vote or not vote in exchange for that payment. These laws are entirely enforceable. | 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. | You tag the question with "criminal law", suggesting that by "illegal" you mean "is it a crime" -- that would depend on jurisdiction, but in the US or my state, it is not a crime. There are crimes that you could commit with such an account, but violating the TOS is not itself a crime. However, it is illegal, a breach of contract, as you can see from the TOS "You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission". | england-and-wales The government grants limited rights of return (thanks Jen), for which you are entitled to a cash or cash-like refund (e.g. reversal of a credit card charge as described below). The vendor has the option to go above and beyond that statutory minimum as a courtesy to the customer. In that non-compulsory zone, they have the liberty to offer store scrip rather than a cash refund. Of course, any business can try to cheat you, and then you have to stick up for your rights by insisting or reporting to relevant authorities. united-states If you buy with a credit card, the rules and contractual obligations of the credit card companies oblige the merchant to accept returns by doing a refund to the card. It's important to understand how this happens: the merchant isn't just picking an arbitrary amount of money and doing a new "sale in reverse"... they are identifying a specific past transaction that already happened, and modifying or reversing it. That is a system safeguard so they don't credit the wrong person or be tricked into a reversal on a transaction that never happened. That's why they want your receipt. On a cash transaction, it is sellers prerogative whether to issue cash or store credit. Issuing store scrip is a reasonable option to deter theft and fraud. For instance someone who wanted an item could get it for free, by buying the item, taking it home, returning the next day without the item, grab another identical item off the shelf and sneak over to the CS line and "return" it with yesterday's receipt. With cash sales, that would be completely untrackable, and the thief is gone. With credit card, they have your identity; with scrip they can "flag" the scrip in their system to either prevent its use and/or have a security officer detain you if you try to use it. For instance American home stores will cheerfully take re-saleable condition items back even without a receipt, but will issue a store voucher for the value rather than cash. That policy would be a disaster if they refunded cash. As it is, I find it rather convenient! So if you want the convenience of cash refunds, you can just use credit cards - gaining the feature at the expense of anonymity. | Would a marketplace for trading receipts be legally allowed to operate? Yes, or at least I think so, since it is highly doubtful that any legislation outlaws receipts trading. Unlike other documents, there is no commonplace notion that receipts are secret, non-transferable, or even private. For it to be actionable, the marketplace would have to engage in, or openly promote, practices which are "more unequivocally" illicit. The possibility that some people might pursue receipts for tax fraud, enjoyment of unearned rights, or other illegitimate purposes does not imply that trading of receipts in and of itself is unlawful. For instance, a person might come up with a bizarre --but nonetheless plausible-- hobby of collecting receipts with certain sequences of figures. | united-states That is going to depend greatly on the circumstances. In the US generally anyone may express an opinion on the value or merits of an investment, indeed that is protected speech under the first amendment. However, a person with an interest in a stock or other security who publishes an opinion or statement intended to deceive people, with the further intent of profiting by the deception, may well have committed securities fraud. If the published text contains false statements of fact, known to the author to be false, or that the author knows have not been checked and might well be false, that is additional evidence of such fraud. There are other cases in which such posting of an alleged "opinion piece" might be criminal or an actionable tort. But that would not make the site illegal. It would be the specific acts by specific people that would be illegal. Only if the site were routinely used for such unlawful purposes and seemed to have no legitimate purpose would one be likely to say that the site was illegal, and even then it is a stretch. | It would depends on the laws of the particular state, since each state has its own laws pertaining to voting. The law in North Carolina, N.C. Gen. Stat. §163-275(7), says that it is unlawful For any person with intent to commit a fraud to register or vote at more than one precinct or more than one time, or to induce another to do so, in the same primary or election, or to vote illegally at any primary or election The corresponding jury instruction says what it means to have an intent to commit a fraud: Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom. Specific intent is a mental purpose, aim or design to accomplish a specific harm or result. If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant voted more than one time in the same election event, the (name election event or contest),and that defendant did so with the intent to commit a fraud, then it would be your duty to return a verdict of guilty. If you do not so find, or if you have a reasonable doubt as to one or more of these things, then it would be your duty to return a verdict of not guilty The prosecution would presumably construct an argument that the defendant intended that is vote be counted twice, and if they can prove that intent, then the jury should convict. Defense could argue that the intent was based on a reasonable belief that their absentee ballot was not counted thus disenfranchising defendant, and defendant acted with the lawful intent that their vote be counted, once. Because NC law contains procedural provisions to filter out double-voting, defendant can reasonably have a non-criminal intent, even if they are mistaken about the efficacy of those safeguards. However, the Ohio law does not carry an intent element: (A) No person shall do any of the following: ... (2) Vote or attempt to vote more than once at the same election by any means, including voting or attempting to vote both by absent voter's ballots under division (G) of section 3503.16 of the Revised Code and by regular ballot at the polls at the same election, or voting or attempting to vote both by absent voter's ballots under division (G) of section 3503.16 of the Revised Code and by absent voter's ballots under Chapter 3509. or armed service absent voter's ballots under Chapter 3511. of the Revised Code at the same election; This doesn't even require that you know that you are voting twice. So it depends on the particular law of the state. | It is currently legal to barter goods or services in exchange for gold or silver bullion in the United States. Gold and silver do not have to be registered or certificated, although a prudent person would usually seek evidence confirming their authenticity and it would be common practice to keep gold and silver in a repository such as a bank or Fort Knox, and to conduct the transaction via negotiable certificates evidencing ownership of the gold or silver (basically warehouse receipts whose transfer is governed by the Uniform Commercial Code) rather than to physically transfer the gold or silver, in a large dollar value transaction. There are been periods of time in the United States where this was not allowed, unless done by a state government (which has a constitutional right to do so), or by a local government authorized by a state government to do so. But those laws are not currently in force and haven't been for a long time. Transfers conducted with gold or silver bullion in excess of $10,000 per transferee per year, probably have to be reported to the same officials to whom a cash transaction in that amount is reportable on IRS Form 8300, because it is considered a collectible cash substitute, even though it is legal to do so and no tax is specific to barter transactions in gold or silver. IRS Publication 1544 explains the rule. |
Reverse engineering for security research Is it legal to reverse engineer a closed source application in order to check how secure it is if: the software came preinstalled on the device (i.e. I have not signed an EULA) I have signed an EULA that forbids reverse engineering I have seen a lot of renowned experts reverse engineer popular software and publish details on their flaws and their inner workings on conferences. Is this legal ? (I am particularly interested in EU law) | As you have agreed, by contract, not to reverse engineer the product, technically it would be a "breach of contract" to do so, assuming such terms are enforceable where you live (or wherever the EULA selects as the choice of forum). | In my opinion, you are totally free to publish the information. There are two areas of law that can be cosidered - private and public law. In the private law area, you can be liable for revealing trade secrets, but only if you agreed to keep them by a contract. Trade secrets do not exist by themselves (there are minor exceptions, eg. in competition law, but those do not concern us), they must be protected by contracts. Another private limitations, like libel laws, won't apply here. This is not uncommon, but not in cars - you can find clauses like these in software license agreements. Then there is the public area. Is there any regulation, any policy of the state, that prevents you from publishing it? I am not aware you whole legal code of your state, but I doubt there is. It would be a harsh limitation of freedom of speech. Even if the modification could lead to illegal effect (like, modifying toy weapon to kill by rising its power...) it would be only illegal under very rare circumstances. To conclude it - freedom of speech can be limited only if there is sufficient public interest to do so, and I don't see any. | 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. | I'm assuming that you are not seeking to change the license, and so it will remain GPLv3. As long as you've built on the original software, that license still applies. You also need to keep the previous copyright notices, including the names of the original people. Assuming that, everything you're doing is legal, which is what's on topic here. There is some etiquette around forks (which is what you're doing), which would be on topic at the Open Source Stack Exchange. I'm puzzled by your desire to have a different license text. You can't change the license from GPLv3, so that has to stay the same. (If the original has GPLv3 "or, at your option, any later version", you can drop the any other version text if you like.) | Written down computer code is subject to copyright. If you do not have the permission of the owner to copy it you are breaching their copyright unless your use constitutes fair use/dealing. | Of course you have to follow the license. You seem to have a license that doesn't allow distribution and want to know if giving copies to the Dutch or Chinese branch of your company is distribution. First, you should not make that decision. Your company's lawyers should do that. Second, such distribution is with some licenses perfectly legal if you distribute the software with source code. That's a business decision which you or your manager or his/her manager... can make. Such questions (whether giving a copy to your Dutch branch is distribution) often don't have an answer that is yes or no but maybe - if you went to court, would a judge say that it is distribution? The answer is quite clearly "maybe". So unless you can find a safe way, there is a risk. Again, your lawyers will assess the risk. | Such clauses are called "copyright assignment", "invention assignment", and/or "works for hire" clauses, partly depending on the clause's intent and wording. They're pretty common in employment contracts for software development and some creative positions. Frankly, the clauses don't actually do much, at least in the US -- copyright law already recognizes the concept of works made for hire (which belong to the employer), and claims too far beyond that are often rejected if they aren't obviously related to company business. With that said, your hypothetical programmer's painting is safe unless it depicts, say, the contents of an email from the CEO. :) Even if the clause technically entitles the employer to claim ownership, the employer has no legitimate interest in doing so. Likewise, that app created outside work is safe as long as it is created using no company resources and is unrelated to the employer's business. If the app is obviously related, that's where things get hairy. | The companies really need to speak to an IP lawyer as this question is seeking specific advice which this site is loathe to give out for fear of compouding issues. The answer would depend on the license agreements and enforceability in various jurisdictions. According to https://social.msdn.microsoft.com/Forums/vstudio/en-US/0368d7ee-0eb3-4e3e-a143-4410969a15bb/eula-for-vs2010?forum=vssetup Microsoft says you cant rent out the software - but this applies to the "Pro" version - I could not find anything on the "Premium" version - so most likely Microsoft to have some clam. The flipside is how enforceable this EULA is - and this would probably vary from jurisdiction to jurisdiction. It would be a very, very good idea to speak to a lawyer before letting Microsoft come onto the premises - as "inviting them" to do this is almost certainly not going to improve the Asians company's case and will allow Microsoft to go fishing further and make it easier for them to expand on and collect evidence should they decide to pursue the matter. |
How should I conduct myself in a UK magistrate's court? The background on this is that I sold my first motor vehicle to a scrap yard to be disassembled for parts and/or sold. Unfortunately for whatever reason the V5 form (official document providing proof of registration of a motor vehicle) must have not found its way to the Driver and Vehicle Licensing Agency and as such I have remained the registered keeper of the car even though the vehicle is no longer in my possession. Approximately four months ago I received a letter from the DVLA informing me that said car I had sold was uninsured, and I must pay a £100 fine. Unfortunately I did not take the initial letter seriously and put it to the back of my mind. I then received a second letter pushing the urgency of the matter and threatening with court. At this point I rang the DVLA where a helpful woman told me the only way I can get around this was to write a letter to the DVLA explaining the situation. She also outlined a list of points to include. I promptly wrote said letter and had it sent by Royal Mail as second class postage. This week I have received a third and final letter summoning me to my local magistrate's court. I have already sought out the scrap company and they have written an email confirming the car was purchased by them 3 months before the DVLA have the vehicle as being registered uninsured. I will also be writing to them again whilst sending in my "not guilty" plea. I have already suggested I will pay the fine in return for them updating their records but I have been told this is no longer an option. I have a couple of questions regarding this whole ordeal: Will an email document be evidence enough? Should I go to the scrapyard in person and ask for a signed hand-written document basically outlining exactly what was said in the email or will this be a pointless endeavor? Exactly how should I conduct myself in the magistrates court? I have no idea how the proceedings go, even basic things such as how do I address the judge and basic guidance on how to conduct myself in the court room? Any guidance will be appreciated, I may seek out a solicitor but as a young adult who has just moved into my first home the purse strings are tight at the minute and I am unsure if this step is even entirely necessary. | Dress respectably. Don't forget any documents (either those that support your explanation, or that you might have been instructed to bring). Printed Emails are fine unless you have been instructed otherwise. Arrive at the court on time and prepared to follow instructions and be respectful. Beyond that nobody expects that someone entering a magisterial court for the first time will be familiar with customs or process. If you're sitting in the wrong place, not standing at the right time, or touching something you're not supposed to, then a court officer will tell you; just follow directions and it's no problem. Address officers as "sir" or "ma'am" unless they ask you to call them something else. If you have a question ask any officer. If you are unsure of what is going on – what you are being charged with, what is at stake, what the purpose of the hearing is – then call the court ahead of time and ask. It sounds like this is an administrative issue and the only thing at stake is a few hundred pounds in fines. If that is in fact the case then hiring a solicitor would be silly. | Yes, you would be responsible. Maintaining the vehicle in a state that enables compliance with the law is the owner's responsibility, and it is a driver's responsibility to comply with the speed limit. There is no knowledge or intent requirement in a speeding violation. That said, a judge might show leniency if you came to court with documentation of a repair or recalibration of the speedometer after the citation. | It appears that title changes when both the seller and the buyer sign the reverse side of the vehicle registration certificate. While a vehicle registration with the government is prima facie evidence that a vehicle is owned by the person indicated in the register of the transportation department, Section 140(2) of the Finance Act (1992) under which Ireland's current vehicle registration system was established effective January 1, 1993 (ignoring grandfathered cases) states that this is a rebuttable presumption of ownership only. Nothing in the regulations issued pursuant to the Finance Act states otherwise, and there is language in one of the forms reproduced in a schedule to the regulations which seems to state that registration is something that one must do promptly upon a change in ownership, rather than change of ownership being something that only actually happens upon a change in registration. This is a deviation from the common law that was subsequently codified in the law of sales for untitled tangible personal property, in which title transfers upon delivery of the goods, or if it is covered by a document such as a negotiable warehouse receipt, upon deliver of a negotiated (i.e. signed) warehouse receipt. Likewise, the historical rule for transfer of real property before ownership registration was established for it, was "signed, sealed, and delivered" meaning that a deed had to be signed by the seller, notarized, and delivered to the buyer or the buyer's agent, for title to be transferred. Generally speaking, when property is represented by an ownership certificate or is intangible, transfer of the certificate or relevant document, rather than physical possession, governs transfer of title (before real property records were formalized and bureaucratized, one had to deliver constructive possession of real property with "livery of seisen" by handing over a rock or dirt or twig from the real property to the buyer to signify delivery of possession of real property, the modern equivalent of which would have been to hand over keys to a building). But, the Finance Act and the associated regulations and forms seem to make clear that you need to have both parties, rather than merely the seller (under this historical rule and the rule in most U.S. jurisdictions), sign the relevant form to transfer title. The question is, at what point does the car actually become mine? The reason I ask is that my insurance policy covers me to drive a car of the specified registration (not the one I just bought) and any other car not owned by me. So if I own the car the moment I hand over the money, I am suddenly not insured to drive it home! But if I own it when the government dept. process the form (or when the seller posts it), I probably have a day to get in touch with the insurance provider to change the coverage to the new car (e.g. if the sale is outside of business hours) My suspicion is that this issue is addressed not by the time that title transfers itself, but by a clause in a standard form car insurance contract in Ireland. There is probably a "tail" provision that extends the previous owner's insurance coverage until the registration is processed if it is processed within a reasonable time. But, I don't have the full text of an Irish car insurance policy contract at my disposal to review in order to confirm that fact. You could probably read the terms of your current car insurance policy contract, if you have one, and determine the answer, as this is likely to be effectively uniform for all car insurance policies in Ireland. Or, as @chepnor notes in the comments, "if you call your insurance company ahead of time and tell them you will be purchasing the car. They'll tell you how to ensure you are covered." | I was told that when you sign something in the UK, then it is your signature, no matter what name you are using. So if you sign a contract with my name, then it's your signature and you are bound by the contract. Things might be invalid because you signed and not me. For example, if you sign a contract selling my car in my name, then that contract is not valid. If some document needs signatures of two witnesses, and you sign with your name, then with my name, then there are no two signatures. As far as I know, signing under a false name is not in itself criminal, but might very well be supporting fraud, for example, and might therefore be illegal. The contract for the sale of my car, signed by you using my name, would very likely be part of fraud and therefore criminal. | There's a good answer in this thread by Trap_Door_Spiders Assuming the car was really stolen, not "stolen" in the sense my friend borrowed it and never gave it back, you could absolutely recover the car. The reason you could, is because you can't steal your own property. Theft is very specifically the taking of ANOTHER's property. Here the property and the title to it has remained with you, because it was stolen. A thief never gets title in stolen property--it's called a void title. A void title is no rights at all as compared to a voidable title which has no rights against the true owner, unless you are subsequent transferee for value without notice (Bona Fide Purchaser). Now we can even take this slightly further. Imagine our thief stole your car and now sold it to Hapless John and all the remaining facts are the same, can you still take the car? Yes, because title in property tracks from the seller of the property. You can only over transfer as good a title as you have in the property. So thief has a void title. When he sold Hapless John the car he transferred a void title, which is no interest at all. So when you see the car and take it back, Hapless John calls the police and reports it stolen too. As long as you could demonstrate it was stolen first, that's the end of the issue. Hapless John has to go find the thief and get his money from thief. Now obviously this all assumes you see the car on say a street or whatever. If you saw it saw it in a driveway, you could end up being charged with trespass unless your state privileges the recovery of stolen property by peaceable means. You still wouldn't be liable for theft, because of the void title, but you can get the other charges. All that said, you are better off having the police come and assist you. If you are even slightly wrong you get hit with the full force of the consequences. It's better just to have a police officer come and assist from a criminal liability stand point. | It might be illegal, depending on where you are. If it is known to the person who owns the vehicle occupying your space prior to doing so that wheelclamping may be the result, then the common law doctrine of volenti non fit injuria ("to a willing party, harm is not done") would lead to a conclusion that one who knowingly places themselves in a situation where harm may befall them is not entitled to bring a claim of tort against the other party (in the United States assumption of risk is a similar doctrine, but doesn't apply here because wheelclamping is an intentional act). In your situation, this means that the owner occupying your space cannot bring a case in tort against you. While it is generally applied to harm to people, there is precedent (albeit in British case law) for the doctrine to be applied to vehicles, and specifically, to the situation you describe - see Arthur v Anker and Vine v London Borough of Waltham Forest. While cases from other jurisdictions are not binding, I have not been able to find any similar cases in the United States, and so it is possible that such cases will be persuasive. Note that this is highly jurisdiction-specific, and there may be laws in your state that make it unlawful - at least one high-profile case involving a McDonalds and its parking lot operator cites California law authorising only law enforcement to impound vehicles, and considering wheelclamping such an act. However, I have not been able to find the record of a judgement on this matter. It is also likely that if the payment you request is excessive, the owner would be able to seek relief, in the form of reducing the payment owed to a reasonable amount. However, if the parking space was not marked in some way to signal that it was reserved for use, then the owner of the vehicle may be entitled to seek injunctive relief and damages from a court. This would be on the basis of, if you only wheelclamped the car and declined to remove the wheelclamp upon the owner's request, the tort of detinue. But, if you attempted to request payment from them, then as Dale mentioned in his answer, you have committed extortion (wheelclamping is actually listed as a crime of extortion). | It is their property, so keeping it without permission could well be seen as theft. I think you are obliged to make reasonable attempts to notify them you have their property before using it or selling it. Just like if someone left the item at your house after a party. If they want it back, however, it is at their cost, you should not be out of pocket for their failure to deliver within a reasonable time-frame; you may find they've already claimed the cost of the product from the courier and don't want it back. You are well within your rights to offer to buy it from them, and them to accept or reject that offer, this is a separate contract to the original sale. | This is not a place for specific legal advice, but you shouldn't be afraid of the small claims court; I'm doing that myself and it really is a low-risk and straightforward way to get money that is owed to you. Step 1: Get the boiler repaired or replaced as necessary. Keep the receipts. Don't be tempted to get an upgrade or anything else to push expenses that are legitimately yours on to the other party; find out what the cheapest thing is that you can reasonably do to fix the problem and then do that. Step 2: Write a letter to the seller in which you set out the facts of the case and demand the cost of the repairs. Also include any other expenses you have had to incur, like money for your time off work while the repair is done. End it with "If you do not agree to pay this money within one month then I will take action in the county court to recover the money". Send it by recorded delivery and include a copy of the repair receipt (NOT the original). Step 3: If you do not get your money then go here and follow the instructions. You have to pay an up-front fee to the court which gets added on to the amount you are claiming. That is the only money you are putting at risk if you lose. The whole thing is as informal and straightforward as possible, and is purposely designed so that you don't need a lawyer, nor can you or the other side claim for the cost of a lawyer if you win. This is why your lawyer is pushing you to do this by yourself: he knows that his fees would be out of proportion to the amount in question, and you wouldn't be able to get that money back even if you won. The only other wrinkle is if the other party has moved far away: in general if a hearing is needed then it will be held near them rather than near you, so you might have to travel. |
Business Registration Rules for startup? I am the CEO and CMO of a new software based startup in Canada. I have little to no knowledge of company registration rules. I would like to not only register my startup in Canada, but also be recognized internationally as a company. I was wondering first of all when is the best time to make the startup a company? (Right at the start? When the product is done and available? As soon as money gets involved?) What makes a company, a company in the eyes of the law? What is the thing I have to do in order to register my startup as a company? P-S: I do know that this is 3 questions, but they are very closely related and I didn't feel like creating 3 different questions and having all the info scatter. | First advice: if you don't know stuff as basic as this, don't go into business. Second advice: hire a lawyer, an accountant, an insurance broker and a business manager immediately. | When a company is under court-supervised protection against creditors (bankruptcy), you can't just do stuff like closing stores, as you might if you were operating free and clear. Here is an overview of Canadian bankruptcy law. It basically comes down to the fact that they sought protection by the government against their creditors, and if you do that, the government requires you to follow broad rules (and the courts will make sure you do). | You won't be able to get around self-doxxing yourself. § 5 Abs 1 TMG requires tele-media service providers like you to list den Namen und die Anschrift, unter der sie niedergelassen sind the name and the address where they reside or are established Similarly, Art 13(1) GDPR requires you to provide the identity and the contact details of the controller In a German context, it is generally accepted that both of these involve a ladungsfähige Anschrift, i.e. a street address where you could be served with a lawsuit (not a post box). These requirements exist for both natural persons and legal entities, and for both businesses and non-commercial activities. The TMG Impressumspflicht talks about “geschäftsmäßige, in der Regel gegen Entgelt angebotene Telemedien” but in practice this only requires that the service could be paid (not that you're actually making any money), and that the service is offered routinely/business-like (not necessarily commercially). It does not matter where your service is hosted as long as you live in Germany. The TMG and GDPR might not apply if the forum is run purely privately, e.g. if it is only made available to a few close friends or family members. | As in most of the world, there is a BIG difference between a person running a business and a person owning a company which runs a business. In the first case, the person is liable for all the debts of the business, in the second case, providing they have fulfilled the legal duties as am owner/director (as applicable) they are not liable for the debts of the company. One of those legal duties is to stop racking up debts you can't pay. In either case, your friend needs professional advice (legal and/or accounting) NOW! A person who is insolvent (cannot pay their debts as and when they fall due) can seek protection from their creditors through bankruptcy. German bankruptcy law, by most standards, is brutal but not so brutal as to take away parenting rights or put the person in jail. | Provided you are in one of the 170+ countries signatory to the Berne Convention (the current 10 non-signatories are, exhaustively: Eritrea, Marshall Islands, Nauru, Palau, San Marino, Iran, Iraq, Ethiopia, Somalia, and South Sudan), then copyright comes into existence at the moment a work is fixed in a tangible medium, not when it is published. The initial copyright owner is the author of the work. In cases of employment, the "author" might be the natural person who authored the work, or the corporate person who employed the natural author. To clarify your thinking about registration: copyright registration is a public record of authorship (or copyright ownership). Registration does not create a copyright, but is merely a recording of the copyright that was automatically created at the moment of original authorship. Depending on circumstances and jurisdiction, Alan might have a legitimate claim to copyright on his own work. However, he will be quite hard-pressed to find a convincing theory of law that allows him to publish the unpublished copyrighted work of other people without their permission. This leaves him either to admit defeat -- he cannot possibly own the copyright of his coworkers' code, so he cannot have legally reproduced it -- or else make the baldfaced lie that the code has no other authors other than Alan himself. For your company to disprove such a claim, you may employ sworn testimony of your coworkers, you may employ code analysis to show differing coding styles (suggestive of multiple authors), or you may show code backups or version control history showing the progressive authorship of the work over time by many people. (Sure, a Git history is possible to fake, but a realistic history with feature branches, "whoops, undid the typo in the last commit" messages, etc. would lend significant weight to your company being the original authors.) | It sounds like you may be conflating ownership and control. It's very common for an affiliate to have a contract with the parent company. These terms can be very detailed - it may give the parent company the right to sell the affiliates widgets, but not sprockets (as those are sold by another parent company). As such, you can't really measure "control" as a simple percentage. So, when the parent is selling widgets, it can reasonably claim control over its affiliate. The buyer does not need to know the exact terms governing the relation between parent and affiliate. | A SAFE is basically what used to be called a "subscription agreement", i.e. an agreement to invest money in the future that will ultimately give rise to an equity investment if made. From a practical perspective, while the contract is legally enforceable, pursuing a lawsuit to enforce it is almost always a death knell level bad move. Firms who sue investors early in the game don't get future investors. The amount of time it takes to enforce such an agreement in a lawsuit is also too long (perhaps a year or two before you have money in hand if it runs its course and still many months if it settles), and the cost of doing so is too great (probably more than $40,000 that you won't get back to bring in $400,000), for it to make sense to do so at the delicate early stage of a start up. Instead, what you need to do is get on the phone with the investor, or quite possibly meet in person, at their offices or in a more casual deal making environment over drinks, for example, to figure out what is troubling them or slowing things up and how to make them happy. This is more of a function of continuing to sell the fact that you are good investment and an opportunity that they are missing out on, than it is about telling them about your legal rights. If this fails, it is probably wiser to seek financing from someone else than to force them to perform. | Do I have to pay taxes if I register the domain but the website income belongs to someone else? No. The person or company who runs, and/or profits from, the business is the entity under obligation to pay all the applicable taxes: Value Added Tax, income tax, corporate tax, and so forth. Unless you charge a significant amount therefor (see the comments), the mere registration of just one domain is unlikely to trigger tax obligations. |
Is it legal to give away the Blu-Ray, DVD, or Digital Copy of a purchased combo pack? If you purchase a movie bundle including multiple formats, is it legal to distribute one or more of those formats—at no cost—to varying family members and/or friends? When I say "distribute" I mean to give away the original without making copies. The verbiage from one Blu-Ray + DVD + Digital HD combo reads "Unless expressly authorized in writing by the copyright owner, any copying, exhibition, export, distribution or other use of this product or any part of it is strictly prohibited." I realize the above's intent is to prevent piracy and resale, but the way it's worded suggests that it's even illegal to give away the entire set, perhaps as a gift. That seems ridiculous and raises more questions than it addresses. Spirit of the law aside, I'm trying to understand my rights with each original copy found in a bundle. | There was a lawsuit Disney v Redbox in 2018 and 2019 about exactly that. It settled. Lawfull masses has 6 videos about the topic. In part, it did lead to Disney altering the ToS of the digital download/streaming site they use to include that you need to own the DVD to be not in violation and to not break the combo pack. | 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. | It is absolutely illegal, unless the movie is really old and out of copyright. Copyright protects all forms of creative expression, including novels, movie scripts, actual movies, translations of movies. | For your example of items with Marvel characters on them for sale by people and companies not licensed by Marvel, Redbubble clearly states that We ask, rather we beg, that you remember this when you are posting work on Redbubble. If you make sure that all the works you upload consist of your very own, original ideas and are not infringing on the intellectual property or publicity rights of another... (from https://help.redbubble.com/hc/en-us/articles/201579195 ) and further, Redbubble has full contact information for the submission of Notice and Takedown Reports by each real trademark owner. There are many individuals who upload products which use unlicensed artwork in violation of trademarks, and Redbubble acknowledges this and gives recourse to the license holder to inform them so they can remove the items. It's not a perfect system, but Redbubble it seems makes every effort to help police their market. ( Teepublic has a very clear policy statement, too: https://www.teepublic.com/copyright-policy ) Many companies - such as Marvel - employ agents to regularly check such websites and issue takedown demands to the sites; the sites in turn remove the products, and in some instances, ban the individual from using the site again. In the case of Amazon, there can be two types of products sold that use trademarked artwork and characters: items sold by legitimate businesses that have license agreements with the trademark owners and who have the products sold by Amazon itself; and items sold on the Amazon marketplace by individuals who open Amazon Marketplace accounts themselves and don't have licenses. Amazon will be sure to check the products they sell; they will have a takedown notices system for their marketplace vendors. eBay is somewhat the same way; there is a mix of individuals and businesses on eBay, but eBay doesn't operate an umbrella sell/ship by eBay, like Amazon. It's kind of a whack-a-mole situation on the Interwebs. How much time/money does a company spend to chase down trademark infringement? Is it worth going to court for persistent violators? (These are, for the most part, civil cases, not criminal). Violators can always open a new account on sites such as Redbubble and eBay under a different name. And it starts all over again. | No, it means you can't copy it. By default, the copyright to a work is owned by its creator, and nobody else is allowed to copy it, or create derived works, without their permission. That permission can be granted by a license. "License unknown" doesn't really tell us anything, but it certainly isn't clearly granting you permission. So you don't have permission to copy, and thus you cannot. You would have to seek permission from the copyright holder. See also If no licence is distributed with an application/source code, what license applies by default if any? (Some jurisdictions do allow for "fair use" exceptions, which allow you to copy a work without permission. You haven't said what jurisdiction you are in.) | What are exactly the legal consequences of "All rights reserved"? Almost none. You have to explicitly grant copyright rights. You don't even need the Copyright notice for them to apply. My "almost" is because the notice makes it harder for somebody to argue "they didn't realize". Do I still need an additional SW License Agreement or is the Copyright notice above + a Disclaimer of liability sufficient? If this is free software (I know you said it isn't), do yourself (and everyone else) a favour by picking a license you like. Preferably either GPL or MIT (depending on your taste). There are far too many free licenses already. Please don't add another. (It also makes it much easier for any user of your software: "Oh yeah, GPL v2. We understand that. We can use it." as opposed to "What are the implications of using this one??" As this is not free software, I think you need a paid-for lawyer (who understands IPR in your juridiction.) Edit: In principle, I believe you don't need anything. The code is copyright, so the customer can't do anything with it (without explicit permissions that you haven't granted). However if the customer doesn't realize that or thinks you won't mind, you then have to go to court to enforce your rights (and probably end up with a disgruntled customer). A short, clear, license will make it clear to the customer what they are allowed to do, and save all that aggravation. | It would be copyright infringement. You had the copyright holders permission to make one copy of the song by downloading it. At that time, if you gave me a copy of that song, it could be argued that very, very little damage was caused because I just had downloaded that song myself with practically the same effect. Today, that argument is not valid anymore. So this is definitely copyright infringement. That's your question answered. I doubt that anyone would take action if you gave a copy to someone and it was found out. Making it available to the world for free download is another matter. That could easily get you into trouble; in the USA there could be a fine up to $150,000 without any proof of actual damages needed. | 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. |
In Canada, can a jury convict you of a crime that wasn't oringially charged? Can you be charged with one crime, but convicted on a different crime? For example, could one be charged with first-degree murder, but be found guilty by a jury of second-degree murder? Could one be charged with murder but found guilty of manslaughter? Could one be charged with manslaughter but found guilty of aggravated assault, etc. I'm asking in a Canadian context but interested for American context as well. | According to the Criminal Code of Canada, you can only generally be convicted of an offence that was included as part of your original charge. For example, you couldn't be charged only with forgery and then be convicted of murder. However, there are some specific exceptions to that rule. Sections 660-662 of the Criminal Code covers these exceptions: Full offence charged, attempt proved 660 Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt. Attempt charged, full offence proved 661 (1) Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence. Offence charged, only part proved 662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted (a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (b) of an attempt to commit an offence so included. First degree murder charged (2) For greater certainty and without limiting the generality of subsection (1), where a count charges first degree murder and the evidence does not prove first degree murder but proves second degree murder or an attempt to commit second degree murder, the jury may find the accused not guilty of first degree murder but guilty of second degree murder or an attempt to commit second degree murder, as the case may be. Conviction for infanticide or manslaughter on charge of murder (3) Subject to subsection (4), where a count charges murder and the evidence proves manslaughter or infanticide but does not prove murder, the jury may find the accused not guilty of murder but guilty of manslaughter or infanticide, but shall not on that count find the accused guilty of any other offence. Conviction for concealing body of child where murder or infanticide charged (4) Where a count charges the murder of a child or infanticide and the evidence proves the commission of an offence under section 243 but does not prove murder or infanticide, the jury may find the accused not guilty of murder or infanticide, as the case may be, but guilty of an offence under section 243. Conviction for dangerous operation where another offence charged (5) For greater certainty, when a count charges an offence under section 220, 221 or 236 arising out of the operation of a conveyance, and the evidence does not prove that offence but proves an offence under section 320.13, the accused may be convicted of an offence under that section. Conviction for break and enter with intent (6) Where a count charges an offence under paragraph 98(1)(b) or 348(1)(b) and the evidence does not prove that offence but does prove an offence under, respectively, paragraph 98(1)(a) or 348(1)(a), the accused may be convicted of an offence under that latter paragraph. | Yes, there is a good chance. Ordinarily, the law as written is what is enforced. On occasion, the wording of the law is actually ambiguous, or vague, which means that the jury will need an instruction as to how to interpret the law. In fact, juries are not literally read the statute, they are given a set of decision-making instructions so that they can decide "If we find X, we must acquit; if we find Y we may convict". Your attorney will, if he is diligent, note the problem and strive for an instruction that favors the client. (The prosecution will of course object). Eventually, on appeal, a court will decide what the law "really means", and that decision might be strictly based on the letter of the law, or it might be based on a supposed spirit of the law, i.e. what the legislature "originally intended". That outcome is determined in part by the jurisprudential ideology of the prevailing justices of the appeals court. Usually, letter of the law prevails until a higher court rules that a particular "spirit" is what was originally intended. | A corporation can be criminally charged, this is not infrequent. If there is a guilty verdict in such a case, the penalty is normally a fine. Not infrequently, there would be a civil case over the same or related conduct, which might result in an injunction or other court order to address future actions and attempt prevent further actions of the same sort. In some cases, an officer, employee, ort agent of a company may also be criminally charged. This is not automatic by position in the company. For there to be a conviction on any such charge, it must be proved that the person charged had himself or herself actually committed a crime, with the usual element of intent for that crime. That would depend on the exact statute involved and its provisions. A person who had knowingly or willfully misused data protected under a privacy law would probably be guilty of a crime. Exactly what crime would depend on the country and the specific conduct alleged. Different countries have different laws on such issues, and many countries have several different privacy laws which apply in different situations. Without a more specific hypothetical indicating just what such a person had done, one cannot say just what charges might be valid or what evidence would be needed to establish guilt. A shareholder would not be guilty of anything just by being a shareholder. Such a person would need to have taken some action in violation of some law to be guilty of any crime. | It's a "greater offense" -- sometimes also called a "greater included offense." But you're generally going to be mistaken about whether the defendant can be re-charged after an acquittal on the lesser-included offense. In the United States, at least, the Double Jeopardy Clause would prohibit that prosecutorial strategy. One could still face new charges for the same conduct, but those charges have to pass the Blockburger test. | "Precedent" refers to a finding of what the law is. A jury only finds facts, and operates (supposedly) within the meaning of the law as already established. All the jury reports is "yes" and "no" to questions of fact (with some reference to existing law): they do not report, at least in any official way "we interpret the law as saying X". So it would be impossible for a jury to "set precedent" in the case law sense. In a notorious case, they might "set precedent" in inspiring other jurors to act similarly, but this is not enforceable precedent in the way that case law precedent is. In the US, if the jury acquits the defendant, that is the end of the matter and there is no re-trial. As for the UK, I am not sure but I think that the prosecution being unhappy with the jury's decision does not create an exception to the double jeopardy rule. | Yes, such a scenario is plausible, and there are some cases where it has probably happened. But since juries do not normally give reasons for their votes, it is hard to establish when it has and when it has not happened, and I have seen no statistics on such occurrences. By the way, "Jury Nullification" is simply when one or more jury members vote in a particular way because of something other than the law and evidence as presented in the trial. Most often the term is used when a jury votes to acquit because they dislike or disapprove of the law involved. For example, in the 1850s a number of people accused of violating the US Fugitive Slave Law by harboring runaway slaves were acquitted, reputedly because juries who disliked the law (quite unpopular in many northern states) no matter what the evidence. Later, during Prohibition, some people charged with possessing or selling alcohol were acquitted, reputedly by juries who disapproved of Prohibition. In both cases, it is hard to get authoritative sources that specific cases were actual instances of jury nullification. Anyway, a juror need not "ask" for jury nullification, that juror just votes to acquit. A jury that votes to acquit (or convict) because of political or personal views about the accused might be said to be "biased" but I am not sure if that would be described as "jury nullification". | The concept is known as lesser included offense. The prosecution believed that they have a chance to prove murder, so they charged murder, but they understood that the judge and jury might not convict on murder. So they said in effect, "and if you won't find him guilty of murder, at least convict for manslaughter." | usukaustralia Yes, this can be charged as a type of negligent homicide, involuntary manslaughter. The degree of culpability might be greater than negligence, since the initial act was a premeditated crime. There is no intent to kill The act is criminal and malicious The consequences are reasonably foreseeable The offense would be a type of constructive manslaughter, where a crime not intended to kill or cause bodily harm results in death. In the UK this is also known as an unlawful act manslaughter. The perpetrator of a premeditated crime is held responsible not only for the intended consequences, but also for foreseeable incidental ones, albeit at a reduced degree of culpability. This doctrine is established in both civil and common law, and will apply in broadly similar ways, with different local names, usually variations on unintended homicide, in most civil law jurisdictions as well. us Medical or fire-fighting equipment being among the stolen items is, in many jurisdictions, by itself sufficient to raise the charge to grand theft, which is a felony in common law. If Bob actually specializes in this, and a death did occur, the prosecution might charge them with second-degree felony murder, if applicable in their state. That rule is generally applied when the base offense presents danger to human life, but there have been cases that stretch it. Burglary is sufficient to apply this rule. Such a charge is less certain to stand up in court and is usually traded down in a plea bargain. |
What laws did Lori Loughlin (and friends) break? I watched the college admission scandal articles go by earlier in the week without much interest. Today I read College admissions scheme: How Felicity Huffman and Lori Loughlin allegedly participated, but I am not clear what the issues are, and what laws were broken by Lori Loughlin and friends. A copy of the indictment was not provided with the stories I visited. Naively, making donations to universities and non-profits to gain favorable treatment has been going on for 200 years in America. That is how the university system and fund raising works. I'm also not clear who the victims are. Are there competitive rowers who claimed they lost admission because of Loughlin and friends? My first question is, what exactly was the crime that Loughlin and friends committed? Surely it cannot be illegal to proffer gifts to universities and charities. | From the link, it appeared that: Payments were made so that exam answers would be corrected before marking Payments were made to have an athletic offer extended for a person who would not otherwise qualify. Fraud and bribery are both applicable crimes. Victims are not necessary for either crime. | It is not necessarily a crime to do this, but the gift to you and from you to Betty would be disregarded and treated as if gift directly from Alice to Betty, if the IRS knew all of the facts. A gift implies a donative intent directed at you. When there is an understanding that you are acting at Alice's direction, you aren't receiving a gift, you are acting as Alice's agent. This said, this scheme, or the alternative it seeks to prevent, has no impact on Betty, because gift taxes are imposed on the donor rather than the recipient of the gift. And, in most cases, a gift in excess of the $14,000 per person per year gift tax exemption will have only a minimal impact. This is because each person is entitled to make a combination of gifts in excess of the exemption during life and transfers to non-spouses and non-charities at death of $11,200,000 per lifetime (adjusted annually for inflation). Usually, all that is necessary if the limit is exceeded is for the donor to file form 706 (a federal gift tax return) at the same time as the donor's income tax return, and this form is very simple if the only gifts given are cash gifts. Transfers to a U.S. citizen spouse are gift and estate tax free, as are gifts to foreign and domestic charities. Spouses who file a Form 709 in a year may treat gifts given by one spouse as actually given half by each spouse. If someone dies not having used their entire $11,200,000 (adjusted for inflation) lifetime exemption, their surviving spouse, if any, inherits that unused portion and can use it at their death in addition to their own lifetime exemption. So, Alice and Betty are trying to evade a tax law that is easy and trouble free to comply with, and may provide future benefits by documenting the intent of the parties with respect to a large gift (so that someone doesn't later try to characterize it as a loan or contribution to a trust estate, for example). While it isn't a crime, it is ill advised and won't benefit them materially in the end. | Probably not. Overview You haven't specified a jurisdiction. I will talk about Australia because that's what I'm familiar with. In Australia the most relevant area of law would be tort, specifically negligence. The university would be liable to pay damages if a court found that it owed a duty of care to your friend, that it breached that duty, and that your friend suffered injury ('injury' including loss of property as well as mental suffering) as a result of that breach. Also potentially relevant would be contract law, if your friend and the university had entered into some kind of agreement relating to his security, or equity, if the university had somehow acted to lead your friend to rely, to his detriment, on the university protecting him (promissory estoppel: Walton Stores v Maher). However, I think this is unlikely unless, for some reason, the university had put up signs saying 'Please come onto our land and we will be responsible for your security'. Negligence You have stated that 'it is their responsibility to make sure all students are safe on campus.' It is not clear whether you mean to state that as a fact or whether you are suggesting it as a possible hypothetical basis of liability. I am not aware of a case that establishes the proposition that universities do have such a duty. The judgments in Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 discuss the liability of the occupier of land (such as the university in your example) for injuries inflicted by criminals upon people present on land (such as your friend in your example). In that case, the defendant ran a shopping centre. The plaintiff worked at a shop in the shopping centre. At the end of the plaintiff's shift at 10.30pm, it was dark outside because the shopping centre switched the lights in the car park off at 10pm. The plaintiff was mugged in the shopping centre car park on his way out to his car. The key question there was whether the defendant shopping centre was under a duty to keep the lights on for workers leaving work (along with the question of how the failure to illuminate the area led to the attack i.e. whether the plaintiff still have been mugged if the lights were on). Therefore the question that we are presently interested in, about an occupier's responsibility to protect visitors, is only dealt with as a side issue in that case. But the principle is pretty well-established that, generally, you are not responsible to protect another person from the criminal acts of a third person. The common law has a strong presumption against imposing liability for 'omissions' as distinct from acts, which is another way of saying that the courts don't want people being liable to run out into the street and help people. See paragraphs 27 and 28 and thereabouts in Modbury Triangle. Particular relationships may exist which create such a duty. One is in relation to school children; the school is responsible for taking such care of the child as a parent would. The relevant features of this the school-child relationship include the child's vulnerability as a child and the way the school controls their movements and enviroment during the school day. I presume that your friend is not a child and the university does not control his or her movements. Therefore a court is likely to be looking at the general principle that the university is not responsible for protecting people from the criminal acts of strangers, and then looking (and probably not finding) any special feature of the relationship between your friend and the university that creates an aspect of vulnerability, reliance or control that makes it reasonable to impose a duty of care. Some people think that there is a general principle that if something bad happens to them, some identifiable person with cash must be responsible for paying compensation, whether that is an insurer, the government or a nearby corporation. The common law has not picked up that principle. The common law would slate the responsibility home primarily to the mugger. Sue them. What does the university have to do with it? Conceivably the university might also be liable along with the mugger, but the fact that an injury occurred and nobody else can in practice be held responsible does not in itself make the university liable. As mentioned by Pat W., there may be some other feature that creates a duty, such as if the university had made some change to the environment that allowed made the attack to occur when it wouldn't otherwise have e.g. moving your friend's dormitory so that the only entrance was through a dark alley, or if the attack occurred inside a university building where the university controlled entry (even then not sure that would get your friend over the line). | 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..." | Considering that the US legal system is more or less similar in practice to the English Courts, yes it is possible to plea bargian a deal. I'm linking to the wikipedia article on the matter with a specific link to the England and Wales for guidence. Normally, I'd explain, but I'm an American and the differences between Magistrate and Crown courts are big enough differences that I can't tell you what the differences in the case is. I should point out this is a legal area where America differences with much of the world. 90% of the United States criminal cases (and a good number of civil cases, which are settled privately before discovery phase) are plea bargained to lesser sentences. Additionally remorse has nothing to do with the plea bargain. You might only be sorry that you got caught breaking the law and can still plea. The lighter sentence is sort of a "thank you" for saving the state money in not having to build their case against you. It is also used to coerce cooperation with the police, as they may have the accused dead to rights and can prosecute him successfully, but he's a little fish who can give intel to a big fish (this usually comes with the caveat of it being a sworn statement, so they can still prosecute you for something if you're lying... OR that the deal holds on condition that everything is factually true. If evidence contradicts you, you're charged as if you never made a deal). It's also important to note that the police will not honor their deals made for your confession... but they will offer you deals (In the United States, police are allowed to lie to you and do it all the time). However, the prosecutor will honor their deals. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. Finally, most jurisdictions allow the judge final say at sentencing, so if the prosecutor does honor the deal and advises the sentence, don't get upset if the judge is tougher and gives you a harsher sentence on the crime, or rejects your plea outright (expect him to scold the prosecutor for wasting his time with a horrible deal, too. Watch the Law and Order SVU episode Raw for a particularly wonderful instance of this rare event occurring). As a part of US federalism, the rules about this change from jurisdiction to jurisdiction, so make sure you understand this. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. I would definitely do some leg work into the English Legal system's opinions on plea bargains. Just because they have it does not mean the state lawyers like employing it and many jurisdictions see it as full on corruption in other parts of the world, even the Common Law jurisdictions. | Against Bob: yes; Against Cindy: no I'm going to borrow @Trish's example because it's a good one although the conclusions they reach are wrong. Alice made a green box. Bob signs an NDA never to tell anyone that Alice made a green box, and there is a clause in it that if the NDA is breached, the box is red. Bob tells Cindy that Alice made a green box. Cindy has a patent on making green boxes. Cindy sues Alice and in the lawsuit puts Bob on the stand. Situation 1 So, the box is objectively green and objectively a breach of Cindy's patent on green boxes. Bob is on the stand and is required to answer questions honestly and no contract can prevent him from doing so. He testifies that the box is green. This would be a breach of contract except that a clause that requires a breach of the law (perjury in this case) is void for public policy reasons so Bob cannot be sued for this. However, he can be sued for the initial breach - he may have a public policy defense here because Alice was breaking the law, however, it’s easy enough to construct a scenario where Alice was innocent but suffered loss from Bob’s disclosure. Cindy can say what she likes because she is not bound by the NDA. Cindy wins, Alice loses. Situation 2 Cindy dies - after a long and happy life so we won't grieve too much. To Bob's surprise, he inherits Cindy's green box patent of which he was previously in complete ignorance of. Bob sues Alice for breaching Cindy's now his, patent. So, the box is objectively green and objectively a breach of Cindy's patent on green boxes. However, Bob agreed with Alice in the contract that the box is red and so, legally for matters between Alice and Bob the box is legally red (notwithstanding that everyone knows it's green) and is not in breach of Bob's patent. This sort of stuff has a name - a legal fiction. Adoption is a legal fiction - adoptive parents are (legally) parents; biological parents of adopted children are (legally) strangers. Alice wins, Bob loses. | As I understand the story, Black recused himself because the attorney was his cousin. I think the joke is that the attorney thought it wasn't necessary for Black to do so, perhaps because the attorney didn't understand how seriously conflicts of interest are taken. I don't think Kennedy misspoke; I think he's just used the generic you construct, in which "you" is used as an impersonal pronoun instead of "one". His sentence could be rephrased more formally as: Hugo Black stands up and stalks out of the room, which among Supreme Court justices is a polite way to say that one is recused. In other words, Black's action is equivalent to him saying "I am recused". | Is this realistic? Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system. The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact. Mostly, this is an issue of causation and not double jeopardy. From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over. Causation Issues Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death. For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her. While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated. When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death. Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that. Collateral Estoppel Issues Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case. Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her. In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present. Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established. |
Is it illegal to lie and say you're under an NDA? Is lying about being under a non-disclosure agreement illegal? Imagine that A manages a bunch of gaming servers online, and B keeps bugging A for information that A does not want to disclose. If A lies and says he's under an NDA, has he violated the law? | Generally speaking, no. Assuming your lie did not cause some "legally cognizable harm" -- as in the case of perjury, defamation, fraud -- it is almost certainly protected by the First Amendment. United States v. Alvarez, 567 U.S. 709 (2012). | In your example, nobody said anything false. The list does include movies from 2003. The movie studio admits this. The person says it too. The person doesn't say the studio tried to hide it. Nothing is wrong with what the person has said in your example. | Yup, it's illegal. You want something, they have something you want. They let you have the thing provided that you do certain things, otherwise they won't give it to you. So providing a credit card is material to the contract. You know that the credit card number is false, you are representing that it is true, the card is a material fact, you intend to get them to allow you in using this false representation, they don't know it is false and they rightfully rely on your truthfulness. They have been harmed by your false representation (maybe: it would cost you a lot in attorney fees to try to challenge on this point). This is fraud. | You can ask nicely, but there is nothing you can do legally to prevent your former employer from making disclosures related to your former employment so long as they are true. | Ah, the old "is this contract invalid (but still legally binding for the other party)"? You signed a contract with someone else. You do not dispute that it was you who signed the contract and agreed to it. You made it abundantly clear that there was a contract between you when you allowed him to do the work. This means one of the following was true: There was a mistake in the contract. What was followed was how it was intended. You signed a contract containing false information in an attempt to defraud someone. One of these will end up much worse for you. The fact that the work was not completed to the agreed upon standard could be considered a breach of contract- this is something a small claims court would decide. | In my opinion, you are totally free to publish the information. There are two areas of law that can be cosidered - private and public law. In the private law area, you can be liable for revealing trade secrets, but only if you agreed to keep them by a contract. Trade secrets do not exist by themselves (there are minor exceptions, eg. in competition law, but those do not concern us), they must be protected by contracts. Another private limitations, like libel laws, won't apply here. This is not uncommon, but not in cars - you can find clauses like these in software license agreements. Then there is the public area. Is there any regulation, any policy of the state, that prevents you from publishing it? I am not aware you whole legal code of your state, but I doubt there is. It would be a harsh limitation of freedom of speech. Even if the modification could lead to illegal effect (like, modifying toy weapon to kill by rising its power...) it would be only illegal under very rare circumstances. To conclude it - freedom of speech can be limited only if there is sufficient public interest to do so, and I don't see any. | Why does the name matter? Today, I entered into a contract to buy petrol and, later, beer and a Caesar salad. In neither case did I exchange names with the other party. If you entered into a contract under a false name with the intent to avoid your responsibilities then that would be fraud. But then, so would doing so under your real name. | Generally you can back-date the effective date of a contract. Texas does not have any specific laws that prohibit it and in contracts law, this concept is called the "relation back" theory of contract effectiveness. See Grubb & Ellis Co. v. Bradley Real Est. Trust, 909 F.2d 1050, 1054 (7th Cir. 1990) for an explanation that back dating violates no general contract law principles and is "determined by the intent of the parties as deduced from the instrument itself." Aside from the obvious issues where someone is back-dating a contract to commit some type of fraud, back-dating raises a whole host of unforeseen consequences with regards to a party's performance under the contract as well as the rights of third parties. The best practice is to make it clear that the effective date and the execution date are different. This avoids confusion and ambiguity that could call the enforceability of the contract into question. Some of the issues that arise when back-dating a NDA are: Liability for disclosures the employee made between the effective date and when the contract is executed/signed. This is particularly troublesome if the NDA provides for liquidated damages or imposes other penalties. If the effective date and execution date are not clear, there might not be a “meeting of the minds.” (The essential elements of a contract are offer, acceptance, consideration, and meeting of the minds.) This is a problem for the employer more than the employee. Liability to third parties. Say an employer licensed some technology from a third party and everyone working on the project was required to sign NDAs. Employer could be on the hook here. Also, the employer and employee could both be in trouble if they were back-dating the contract to trick the third party into thinking it had been signed all along. The issue here is fraud. So, the bottom-line is that is generally legal/enforceable, but one should have a clear explanation for the difference in the dates. |
Is it legal to work more than more than 48 hours in EU with multiple jobs if one is a freelance job? I am working full-time as an International research assistant (in a University Library) in Germany. A startup (based in London) asked me to work with them as a research consultant (a kind of freelancer, 5-10 hours per week). I am working as full time (40 hours/week) and also doing a part-time PhD (4 hours/week, not being paid). My employer gave official permission for part-time PhD. I wanted to work with the startup as a research consultant because we exchange data and technology. As per the EU regulation, there is a limit of a maximum of 48 hours per week. I have two questions: Can I work at two jobs (full-time and freelancer) in Germany and UK? How does an employer check the exact number of the working hour across Germany and London? | The EU-wide 48 hour limit and the German Arbeitszeitgesetz only apply to employees, not to self-employed persons or freelancers. Thus, it would in principle be legal to have a full-time job and do any amount of freelancing on the side. I'm not sure whether your PhD student position factors into this since it is unpaid. If you have multiple employers, the sum of working time matters – this is one reason why you have to notify your employers about additional jobs. One employer cannot check your time with another employer, so you should inform them when your shifts change (while employers can assign you shifts, they must consider your personal circumstances). But self-employment is not employment. If you take this offer, you would act as a German business, perform work in Germany, pay taxes in Germany, but have an UK client. (Assuming your work would be done remotely rather than travelling to the UK to perform your work there). Freelancing would also mean that you'll meet the wonderful world of German bureaucracy, including registering with the Finanzamt, writing invoices, doing accounting, filing taxes, dealing with VAT, and trying to navigate a no-deal Brexit. At least your work likely counts as freiberuflich rather than gewerblich, which would free you from a Gewerbeanmeldung. Your don't have to seek permission from your employer when taking up a side job, but you must notify them. They can object if your side job would impact your work. This would clearly be the case when working for a competitor, or when your side job would bring you over the working time limit. Since you work in the public sector, there may be additional rules (parts of Beamtenrecht apply to your employment relationship). While the working time limit does not apply to freelancing, this might still impact your job if you get too little rest, or if you would become unavailable for your main job during normal working hours. Taking up a side job despite an objection could be cause for immediate termination. Note also that you cannot generally use vacation days to work a side job since vacation is intended for recuperation. To summarize: you would not work an UK job, but be employed in Germany and be self-employed in Germany the working time limit only relates to employed work, not self-employed work your employer may nevertheless be able to object to you taking up another job if it would affect your work | I infer from the use of the past tense "worked" that you no longer work for the company in question. Also, from the fact that you are wondering whether there might be negative consequences, I infer that you do not have permission to use the systems in question. The specific consequences will depend on where the company and its computers are located, as well as on the nature of the systems you log in to and on what you do with those systems, but it's certainly possible to receive a penalty of several years' imprisonment. The fact that you created the system in question makes no difference. | Issues considered Based on the papers you cite, it seems like its not even straightforward in U.S. law. They discuss three main legal questions that are obstacles to implementing an open-access policy: Is there a "teacher exception" to work for hire, giving researchers initial copyright over their papers? Does a non-exclusive partial rights transfer survive a subsequent exclusive copyright transfer? Is a university policy a sufficient legal instrument to achieve the non-exclusive rights transfer in question (2)? Turns out, this scenario is specific enough that it really matters which jurisdiction is being considered. I took this question as an opportunity to research the copyright regimes of France, Germany and Japan (translations of their respective copyright acts linked). Japanese copyright law is fairly similar to U.S. copyright law in terms of rights transfer, so I will mainly be analyzing the first two (that and I have no competence in Japanese). I am not in any position to be writing papers over this subject, but in considering questions (2) and (3) with a civil law context, I'll cover some laws on governing rights transfers. I'm not considering question (1) because if the university holds original copyright, then it is trivial for them to implement an open-access policy. I thus assume the faculty members hold original copyright for this answer (which is generally the case in France and Germany anyways). Author's rights basics Author's rights are separated into two branches: moral rights and economic rights. Moral rights are generally non-transferable. Often they cannot be waived and last for eternity. Economic rights are those which can be transferred and exploited, but as you note these may also be subject to restrictions. For the rest of this answer, I will be avoiding the term "copyright" as it is ambiguous: It can mean just the economic rights (like in the translated Japanese), or author's right as a whole (like in the translated German and French). Note: Links from this point on are in French (English resources weren't sufficient). Survival of non-exclusive rights transfers In Germany, this is a straightforward affirmative: Section 33 states: Exclusive and non-exclusive rights of use shall remain effective with respect to rights of use granted later. [...] In France, an answer to this question is elusive. This isn't too surprising as French statute hardly references non-exclusive licences. As an example, it took until 2007 for the GPL to be recognized in court. Given that the courts have been leaning towards giving weight to open licenses, my assumption is that they would follow the common-sense approach taken by German law though I've not found any direct statement to that effect. Implementing an open-access university policy From an author's right perspective, the biggest issue I see in drafting such a policy is that by default the authors give the university a non-exclusive right of distribution for future articles. France has particularly strong protections for future works. L131-1 states: Total transfer of future works shall be null and void. Though it may look as if this can be easily avoided by adding a few simple small clauses, jurisprudence has been to interpret this in favour of the author when possible. For further information, see here. While I'm of the opinion the scope of the policy would be narrow enough to avoid the reach of L131-1, there are additional restrictions on publication contracts. Noting that giving the university non-exclusive distribution rights will likely make the university a "publisher" in the eyes of the law, L132-4 states that: A clause by which the author undertakes to afford a right of preference to a publisher for the publication of his future works of clearly specified kinds shall be lawful. Such right shall be limited, for each kind of work, to five new works as from the day of signature of the publishing contract concluded for the first work or to works produced by the author within a period of five years from that same date. This makes it difficult to have a blanket open-access policy. I'm not certain whether an opt-out clause would be enough to avoid the above restriction. Additionally, France has the moral right of retraction allowing the author to withdraw granted rights of use under strict conditions (L121-4). French moral rights can't be waived so it's futile to account for it in a policy, but it's something to be aware of when implementing an open-access system. In Germany, while there are some protections for future unknown types of use, the scope is fairly well defined here. This puts the situation squarely under Section 40: (1) A contract in which the author undertakes to grant rights of use in future works which are not specified in any way or are only referred to by type shall be made in writing. The contract may be terminated by either party after a period of five years following its conclusion. The term of notice shall be six months, unless a shorter term is agreed. I therefore don't see an issue with this in Germany provided that the policy is specifically agreed to and is renewed with faculty at least every 5 years. Legislated open-access Whether or not the university implements a lawful open-access policy (which is challenging in France...), the author has another available option. Both Germany (Section 38(4)) and France (L533-4 I. of the Research Code) have legislated a limited form of open-access that the author has a right to. While the laws are slightly different, they boil down to the following: After publication in a journal, the author may publish the article in an open-access manner after an embargo period of at most 12 months notwithstanding any exclusive rights transfer to a publisher, provided that the research was at least half funded by public funds. | In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source. | The answer to your question is that your manager cannot ask you to undertake training without payment. All employees are entitled to be paid for the work they have done. They are also entitled to be paid if they are ready and willing to work but their employer has not provided them with any work to do, unless your employment contract says otherwise. https://www.citizensadvice.org.uk/work/rights-at-work/rights-to-pay/ Zero hours contracts can be very complicated legal issues, but you are entitled to be paid for the time you spend there doing what your employer has asked you to do. However, if your employment were to be terminated due to a disagreement then you may not be able to make any claim before an Employment Tribunal as you do not yet have a sufficient length of employment. There are many legal complications, and each case is different and individual. Giving general legal advice is beset with all kinds of problems. You may wish to direct your employer to the Citizens' Advice page. If they do not agree to either pay you for your time there or allow you to leave when they do not wish to pay you then your best option might be to seek employment elsewhere. | Yes. The European Enforcement Order is an explicit procedure for uncontested claims like this. That means no German court is involved (unlike Dale M's answer suggests). The Greek Court files an EEO, and this can be enforced directly in Germany without going through German courts again. That means you can face wage garrisons, bank account freezes etcetera. | It is not uncommon for an employer to ask a former employee to assist with something as a courtesy, and sometimes the former employee will choose to do so. If it requires more than a small amount of time, this may be done under a short-term consulting contract for pay. But unless there was a contract of employment requiring such post-employment advice, there is no legal obligation for the former employee to provide such assistance. The most the former employer could do is give a poor reference if asked by potential future employers, and most large corporate employers now only give job title, salary range, and dates of employment to avoid claims of incorrect or defamatory statements in such references. | If your friend was a salaried W2 full time exempt employee hired by the company to, among other things, write software like this, then the fact that it was developed "off the clock" with the employee's own resources means nothing once he gives it to the company. I mean if I give you a present and it blows up and breaks your arm, I'm still liable even if we didn't have a "contract" - especially if I knew it would blow up. Your friend's position is even worse since the relationship entails the employee's having the employer's best interests in mind. If I were your friend, I'd either figure out how to fix this or take gnasher729's advice from the comments and find a country where it's easy to hide from parties public and private. Maybe buy a bunch of canned food and go live on a boat? |
Has punishment for precedent-setting decisions ever been recognized as retroactive enforcement of a new law? When a court sets a precedent, it is effectively creating a law (case law). This means that the law (or a newly clear interpretation that can only now be relied on) did not exist prior to the courts opinion being handed down. If that is the case, it is trivially obvious that the person found guilty in such a "test case" could not possibly have broken the law, since the law is created at the moment of the decision. Given that it is also clearly improper to hold someone responsible for laws that don't yet exist (violation of the "due process" clause), shouldn't those involved in test cases be protected from punishment? Are there any jurisdictions, or has there ever been a time, where "test case" defendants (and/or litigants in civil actions) are protected from punishment if a precedent is set from the decision? If not for the "due process reasons" but to encourage test cases that can improve the law—vs. the current approach which acts to prevent test cases because they are so risky. Has there ever been an attempt to implement such immunity, and if so, why/how was it defeated? Has a prosecutor and/or judge ever used their discretion to decrease or prevent punishment in a precedent-setting case? | Your premise that "the law did not exist previously" is, from the perspective of how courts work, mistaken. The law always existed, it's just that some people (maybe even judges) mistakenly thought the law didn't exist (actually, "meant something else"). Many people have wrong ideas about what the law says, but ignorance of misunderstanding of the law is no excuse. Even having an understandable wrong belief is no excuse. There is an area in which ignorance of the law is excused. Violation of a person's civil rights under color of law is a civil wrong for which the officer can be sued. See Hope v. Pelzer, 536 U.S. 730 and citations therein: Respondents may nevertheless be shielded from liability for their constitutionally impermissible conduct if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Thus an officer may not use a qualified immunity defense if the court finds that an action is a civil rights violation and this "clarification" of the law is new. | The Brandenburg Test This is not a "general test" - it's the test that applies. The prosecution must prove beyond reasonable doubt that: The speech is “directed to inciting or producing imminent lawless action,” AND The speech is “likely to incite or produce such action.” The first goes to mens rea; that the person intended by their speech to incite lawless action. This is a matter of fact based on conduct before, during and after the speech act. That is, intention can be established by what the speaker said and did before they spoke, while they were speaking and after their speech concluded. The second is based on the speech act itself. Here we have no precedent as to whether the incitement must be explicit (Lady McBeth or Iago) or implicit (Marc Antony): Hence, since Brandenburg, the Court has not elaborated on whether words of incitement are a necessary condition for conviction or if, absent words of incitement, a defendant has a First Amendment defense as a matter of law. We are left only with the Court's language in Brandenburg to try to divine whether words of incitement are in fact a necessary condition for conviction. The text is ambiguous. The Court stated that the First Amendment protects a speaker unless the speaker's advocacy is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Professor Gunther's position, that Brandenburg adopts Judge Hand's view, is supported by its self-conscious use of the term "inciting," suggesting that words of incitement are a necessary condition. No doubt, the Court was aware of Judge Hand's use of that term. But, of course, the Court did not state explicitly that a speaker has a First Amendment defense. Rather, it used an additional term, advocacy directed to "producing" the imminent criminal conduct. Arguably, unless the "producing" language was merely surplusage, the Court recognized that language not explicitly inciting lawless conduct may nonetheless be sufficiently dangerous that it should be criminalized. | The US legal system deals with this by punishing you for the crimes of which you are convicted. That is, those where the evidence (whatever it is) convinces a jury that you are guilty beyond reasonable doubt. If there is insufficient evidence, for whatever reason then you would not be convicted. The prosecution can, subject to admissibility, put forward whatever evidence they like in order to convince the jury. This can include a pile of ash that they allege contained convincing and unambiguous evidence of guilt. Of course, if that's all they've got the prosecution would probably be censured by the judge for wasting everybody's time and money, more likely, a prosecutor wouldn't lay charges in the first place. As to punishment for an evidence tampering conviction: you have been convicted of evidence tampering, not drug production so you will be punished for evidence tampering, not drug production. The legislature sets different punishments for these for a reason, possibly a reason known only to them but a reason nevertheless. The judge has discretion to apply anything between the minimum and maximum sentence prescribed. A conviction for evidence tampering in a drug case rather than, say, a jaywalking case, is likely to get a more severe sentence all else being equal. | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | 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. | 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. | In general they are not told. In fact, I am not aware of any jurisdiction where they are told by the judge officially. In fact judges will normally charge a jury that they must accept the law as stated by the judge, and ignore any other source of the law, whether they like it or not. But the Judge has no way to enforce such a charge. According to the Wikipedia article The 1895 decision in Sparf v. United States, written by Justice John Marshall Harlan held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5–4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge. A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect. We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision. Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that: …by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed. It is not so much that jury nullification is a right of the jury, as that there is very little right for the prosecutor or judge to inquire into why the jury acted however it did. If there is a suspicion that the jury was bribed, or influenced by prohibited communications, that can be looked into. But otherwise a jury is like an oracle, its actions have no specified reason or justification, they are whatever they are. The judge (or an appeals court) can set aside a jury verdict on the grounds that no rational jury could find in a particular way -- this is mostly used to overturn convictions based on insufficient evidence. But a jury has almost total freedom to believe of disbelieve any witnesses, so if it disbelieves, it could acquit, regardless of whether it rejects the law under which charges are brought. So there is no way to tell if a particular verdict was based on nullification, or on disbelief of the witnesses, or some other possible ground. In any case, there is no provision -- that I k now of -- to set aside a jury verdict on the grounds that it was an instance of nullification, so inquiring into whether it was would be of little point. This attitude toward jury verdicts goes back to the very early origins of trial by jury, when it was a replacement for Trial by Ordeal. The Ordeal had been considered a way of asking God to decide the issue, and there was no way to ask God to clarify the decision. When it was replaced by jury trial, no way to ask for clarification was considered possible there either -- the jury was said to voice the decision of the community at large: the formal term for jury trial was "to be tried by the country". See C. Rembar's The Law of the Land and H.C. Lea's The Duel and the oath for more on this history. This article reports on recent cases where juries have refused to convict in Marijuana cases. | Yes, certainly. A prominent example was Lawrence v. Texas. The defendants were charged in state court with "deviate sexual intercourse". They moved to dismiss on the grounds that the statute was unconstitutional. Their motion was denied and they were convicted and fined; the denial was upheld by the state's court of appeals. They then appealed to the US Supreme Court, which eventually ruled that the statute was indeed unconstitutional. A defendant likely wouldn't have standing to sue the state for enforcing the law in general, only for enforcing it on the defendant himself. |
Copyrighting ancient texts I heard that reprints of ancient texts can only be copyrighted for their format, but not their actual text. But if you like the format, how close to the published format can you get before it's copyright infringement? (Also, if my premise is wrong, please correct me) This is an educational question and I am curious if such a case is even possible, and if not, how such a case would go about being decided. | The text of an ancient manuscript would indeed not be covered by copyright. A translation into a modern language normally would be protected by copyright. (Unless it is purely a machine or algorithmic translation.) The formatting of a publication could ber protected by copyright, but only if it includes some significantly original element. (In the US, and in many but not all other countries, only original works or original aspects of works may be protected by copyright. Thus where the copyright is for format the format must include an original element or elements.) If the format was a normal one for the type of publication, ther would be no original content to protect, and so no copyright at all. A work alleged to infringe a copyright on the format would need to be shown to have copied an original element or elements of the prior publication's format. | 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. | This almost certainly falls under fair use. In fact, there are numerous examples of such books already. You are using a small portion of the work, and it is for a transformative purpose- teaching about it. | I'm going to focus on one part of your question, because I think it is informative to the entire question: "By publishing those data in a copyrighted book are they now in the public domain?" Insofar as copyright is concerned, the "facts" are simply never copyrightable. What is copyrightable is the expression of the fact. So you publish a book and it contains many facts. You retain copyright over how you expressed the facts, meaning the word choice, format of presentation and so on. The discussion of this point always leads people to ask the following two questions: What if the "facts" are closely related to the way they are expressed? For example, a phonebook contains "facts" about phone numbers. The individual numbers are not subject to copyright. But if the way they were organized was clever (i.e. not merely alphabetical) the presentation may be copyrighted. Doesn't that line get blurred? Why doesn't "the presentation order" count as a "fact?" It does get blurred! And courts use nuanced case law and judgment to figure out which side of the line a given thing is. However, one backstop is that if AN EXPRESSION is so closely related to the IDEA BEING EXPRESSED that the IDEA cannot be otherwise expressed, then then the EXPRESSION is not subject to copyright protection. To answer your specific questions: The book is subject to copyright. The facts in the book are not. Someone else could publish a book with the same measurements so long as they are expressing the facts with sufficient difference from the original. I'm not familiar with CUSIP numbers. However, there are two things to say here. (A) it sounds like you are describing a contractual relationship between the people who have the numbers. This is not governed by copyright; it is governed by contract between the parties. If these numbers could be treated as a "trade secret" they might be protected IP in that way. But given that they are likely circulated at least a bit, they don't seem like candidates for "trade secret" protection. To your question, "what is the effect of one person leaking?" If "trade secret" law was doing any "work" here... then yes, the trade secret would be undone once the information was public. But like I said, its likely this is actually all about contracts not intellectual property protection. (B) The "facts" of "which number is associated with which instrument" is likely NOT subject to copyright at any time. The specific numbering code COULD BE copyrighted, but in reality is almost certainly TOO CLOSELY tied to the IDEA being expressed to be copyrighted. Could the number be expressed otherwise? If not, then its likely not protected by copyright. -- Big take away here: You seem to be confused about the concept of "facts" getting into the public domain. That's not exactly what copyright is about. Copyright would protect the expression of facts. An expression can become public domain if it is sufficiently old or if the creator designates it as public domain work. But simply "putting something out there" does nothing to alter the copyright status of the thing. | Physical content The main consideration with physical content is that reading it does not require making a copy, so uncomplicated copyright law is what’s relevant. Copyright law is about making copies (also distributing). Purchase a novel (a physical book which was legally obtained). There is no copying involved (you do not in fact make a copy in your mind, if you're a human). Under the First Sale doctrine, once a copy is sold by the rights-holder (e.g. the publisher, initially to the bookstore or distributor), that owner can do whatever it wants with that specific copy, including reading or re-selling (and anying thereafter can likewise). Books are sold, not licensed. Copyright relates to copying, not reading. It’s true that all (legal) rights are reserved, but the power to prevent resale is not a right. Book (or anything else) on the ground. As above, with the complication that you aren’t at least immediately the rightful owner. But, you don’t have to be the owner of a protected work to read it (otherwise libraries would not exist). The rightful owner might unsuccessfully try to sue you for reading their property, but reading does not cause damage, and your act is innocent (not even negligent), and not wrongful. Eventually (depending on jurisdiction) you may become the owner if the original owner does not reclaim the book. Reading a copy made by someone else. See above about the relationship between reading and copyright. The teacher might maybe be liable for infringement, but you are not culpable (assuming you didn’t encourage the teacher to make an illegal copy). Digital content However, every item of digital content has to be copied many times, in order to actually be read. E.g. a copy is made to video display memory from RAM, which is copied some number of times from RAM to RAM as the program formats and sizes, ultimately reading a copy stored on disk storage (which is installed from.... using N temp files) Typically what happens is that you acquire a copy of a license to use the content. Some number of copies may be statutorily permitted, e.g. the myriad transitory copies created across the internet as you download the work, or on your computer as you install it. The law addresses this matter in part at 17 USC 117, saying that it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. Since Congress chose the word “program” rather than “file”, the plain reading of this is that permission is always required to read digital content. One may assume, when you purchase an electronic book at the store (you thus own the recording medium), that the work also comes with specific permission to make those automatic copies required to actually read the book on a computer. In order to read the book you must make some number of copies. Seeing stuff on a web page. Let’s also assume that the material is on the page without permission, but you don’t know that, and it just jumps out at you. This raises an interesting question regarding statutory language and web pages. The statutory language is not at all clear about link-clicking (the statutes don't say anything about "links"), and I don't know of any relevant case law (probably because it would be ludicrous to go after an innocent link-clicker) Infringement is defined in 17 USC 501(a): Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright and if you infringe, you may be liable. 17 USC 106 spells out those rights: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; … (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; … When you go to a web page and click a link, are you reproducing the protected material? Or is the website owner reproducing the material, and pushing it onto you? I don’t know of any decisions that address this kind of technical question. There is no question that the person hosting the infringing material is liable, the question is whether you would be as well? It would be highly unjust to hold the innocent link-clicker responsible. There is a bit of protection for innocent infringement in 17 USC 405(b) Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408, if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer’s profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition for permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court. (c) Protection under this title is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords. (You could be prevented from further use of the infringing material, and liable for specific lost profit). Infringement is not defined in terms of what you know or believe about the copyright status of work. Nevertheless, I would expect that in addressing the question of whether a person had in fact made a copy that they would look at the mental state of the individual, looking for mens rea. This could distinguish clicking a link that unexpectedly pushes protected material onto you, versus attempting to obtain protected material by clicking on a link. | The following answer is based on US-law. I am not a lawyer; this is not legal advice. If the book you read is in the public domain* you should be fine. Otherwise what you are doing is copyright infringement and probably not protected by fair use**. One of the rights granted to copyright holders is to control derivative works, and transference to different mediums, which is what your recordings would be. Under US law, whether an instance of copyright infringement is fair use is evaluated on a case-by-case basis, weighing four points: the purpose and character of one's use the nature of the copyrighted work what amount and proportion of the whole work was taken the effect of the use upon the potential market for, or value of the copyrighted work In my non-lawyer evaluation, point 1 depends on what you do in your video (unless you monetize your Youtube video, in which case it is likely to be decided against you), but if you are merely reading the book out aloud, it is unlikely to be in your favor (although it may not be against you as an "educational tool"). Point 2 depends on what is being read, with a informative work (e.g. a textbook) being more likely to be fair use than a creative work (e.g. a novel). Point 3 depends on how much and what proportion of a work you use; since you are presumably reading a whole book, this would most likely be ruled against you. Point 4 would almost certainly be decided against you, as you are essentially creating an unauthorized audiobook. In summary, you can read a book aloud. You can record your reading of it for your personal use. You should NOT upload it to Youtube, or other sharing sites. *Note that different countries have differing rules on when a book enters the public domain, and since the internet crosses borders, multiple rule sets may apply. | I believe the author has published it online. I agree. It is posted at his publisher's website. However, I am unsure if I'm allowed to read it. This answer assumes you are in jurisdiction whose copyright laws is based upon the Berne convention (i.e. the civilized world + USA). Assuming it was the author published it online, it is perfectly legal to read it. Technically, the author is performing his work by putting it online, and by reading it, you are just enjoying his performance. Also, if you are in a jurisdiction with an explicit exception from copyright for personal use, or where fair use allows making copies for personal use, it would also be legal to download it, or to print it on paper (but for personal use only). As for downloading and printing for non-personal use - that is not legal in Berne jurisdictions. | 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." |
Blocking certain countries Due to some laws one wants to block certain countries from accessing his app which he uploaded on play console.One turns off those countries in GOOGLE play console so it cannot be downloaded in those country. Someone pirates it and aquires it. In EULA one clearly specifies the blocked countries and reasons for ban . Then writes - "Use of this app is strictly prohibited if you are located or are a resident of or are a citizen or relate to anywhere outside the supported countries.You accept you are liable for any fines or damage we face if you continue." So for EEA countries the users in EEA are told they are not allowed to use the app at all and must not keep it . If they continue to use they take the responsiblity to pay any GDPR fines or liblity for us. Thus it is strictlgy priohibited. Is such an agreement legal? | If you can’t stand the heat, get out of the kitchen The thrust of this question, as well as many others you have posted, seems to be looking for a way of avoiding your obligations under the GDPR because they are difficult, onerous and/or expensive. Too bad! You don’t have the option of which laws you comply with and which ones you don’t. If I had my choice, I’d comply with the GDPR and not with tax law, but I don’t so I can’t. You have 3 simple choices: Do your best and insure the rest. This means learning what’s required and implementing it to the best of your ability and taking out appropriate insurance cover to deal with any mistakes you make. Ignore the law and hope you don’t get caught. Don’t release apps. | The status of any PII (Personally Identifiable Information) is the same in GDPR regardless of location, or who enters it. Its goals are (among others) to stop any actor (company / government or other) from hiding responsibility about their use and practices around people's data. GDPR does even apply to anything offline and on paper. Basically it means you have to validate any entry field is free of PII before processing it. Or make it clear in your privacy statement how you handle this use-case. | 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)). | 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. | These kinds of cookie banners are typically noncompliant and useless since they are not clear and provide too little information to users. Careful: blocking a user who declines consent is usually a GDPR violation! Instead, only those aspects of the site that rely on this consent should be disabled. When cookie consent is needed Per the EU ePrivacy directive (PECR in the UK), information society services (websites, apps, …) are only allowed to store or access information on the end user's device if one of the following holds: the access or storage is strictly necessary for performing a service that was explicitly requested by the user; or the user has given consent Note: there is no “legitimate interest” exception for cookies. When is access/storage strictly necessary? For example, it is strictly necessary for a photography app to store photos on a device. It is strictly necessary for a website to store session cookies so that you can log in to the site. It is strictly necessary for an ecommerce site to store the contents of your shopping cart. It is strictly necessary to remember cookie consent status. And so on. It is not strictly necessary from the perspective of the user to have analytics cookies, ad personalization cookies, or cookies for features that the user doesn't actually use. Many websites that just provide the service the user expects will therefore not have to ask for cookie consent, even if they use cookies. It is worth noting that the ePrivacy definition is entirely technology-neutral. It doesn't relate specifically to cookies, but to any kinds of storage, including LocalStorage. Regulatory guidance considers any access or storage of information on the device to be in scope, even JavaScript APIs in a browser (for example to read the screen dimensions), and considers techniques like fingerprinting to be functionally equivalent and therefore subject to the same rules. It is also worth noting that these rules apply regardless of whether the information being accessed/stored qualifies as “personal data”. What consent is Consent is defined in Art 4(11) and Art 7 GDPR, and further explained in EDPB guidelines 05/2020. A defining feature of consent is that it must be freely given. The user must not suffer “detriment” for revoking or declining consent. And per Art 7(4): When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. This disallows making access to a service conditional on unrelated consent. For example, it would not be permissible for a website to exclude users who decline consent for advertising cookies. But: The EDPB guidelines discuss that there can be “permissible incentive” for consent. For example, courts and some DPAs seem to be of the opinion that a subscription website can offer free access to users that consented to personalized ads: consent-or-pay-walls can be compliant, whereas consent-walls alone would not. Sometimes consent is really needed for a processing activity, in which case it is OK to block that service until consent is given. For example, websites should not load third party content like YouTube videos or embedded maps until consent is given to share personal data with the third party. The rest of the website should still work, though. If consent was not freely given, if the user didn't have an actual choice, then the consent is invalid. What should the data controller in your scenario do? The data controller should reassess the role of the cookies for which they are trying to ask for consent. If these cookies are strictly necessary from the user's perspective, then it is proper to inform the user about them – but this should not be confused with consent. It is my personal opinion that purely informational cookie banners are confusing/misleading and should be avoided, but this could also be argued differently. If these cookies are not strictly necessary, then the phrasing “We need to use cookies to provide you with our service” is quite misleading. It should be made clearer to the user that they can opt-in to additional services/improvements if they want to. The user should be able to configure this on a per-purpose basis. Thus, more compliant cookie consent flows will typically give the user three options: continue with only strictly necessary cookies/purposes (must be default behaviour if none is selected) consent to all purposes configure purposes For example, I'm fairly happy with the current Reddit cookie notice: Why this is a good notice: it explains the data controllers (Reddit and partners) it summarizes the purposes for which consent is sought it links to more detailed information the presented options “accept all” an “reject non-essential” are less ambiguous that “accept/decline” Comparing this with the list of minimum required information for informed consent in section 3.3.1 of the EDPB guidelines linked above, the following information is missing though: the identity of the “partners” what (type of) data will be collected and used the existence of the right to withdraw consent | If GDPR applies, then no one can opt out. If it doesn't apply, then an IP block is superfluous. Whether GDPR applies is determined by Art 3 GDPR. For this, we must distinguish where the data controller is operating from. It is irrelevant where the site is hosted, but primarily relevant where the data controller (your colleague) has an “establishment”, e.g. where he resides or typically works from. Per Art 3(1), GDPR applies to all processing activities in the context of an European establishment, regardless of where the users are. So if your colleague were running this site from Europe, they wouldn't be able to circumvent GDPR by blocking European users. However, if your colleague is running this site from outside of Europe, then Art 3(1) doesn't trigger. Per Art 3(2), GDPR can apply to processing activities where there is no European establishment. There is the Art 3(2)(a) “targeting criterion”: if your colleague “offers” goods or services to people who are in Europe, regardless whether paid or gratis, then GDPR applies to all processing activities related to this offer. I'll discuss this more below. There is also the Art 3(2)(b) criterion: if your colleague monitors the behaviour of people that occurs in Europe, then GDPR applies. For example, an app collecting geolocation information or a website creating interest profiles for ad targeting might trigger this criterion. An IP block can help to establish that no offering/monitoring related to people who are in Europe is happening, but it might not be necessary. It may be worth talking a bit more about the targeting criterion. The GDPR explicitly says that mere availability of a website in Europe doesn't imply that GDPR would apply. Instead, it is necessary to establish the data controller's intention – are they soliciting users from Europe, or otherwise expecting that people from Europe might use those services? Recital 23 gives a couple of non-exhaustive factors that can be considered here, for example: the site uses a language or currency used in the EU but not used in the controller's own country the site mentions users or customers from Europe, e.g. in testimonials This means that a lot of US websites, written in English or Spanish, only mentioning payment in USD (if any), not mentioning any European countries, will not be subject to GDPR. Then, occasional European visitors are irrelevant. It wouldn't be necessary to IP-block potential European users. However, such an IP-based block would help establish that the data controller really doesn't intend for those services to be offered to people who are in Europe. My personal opinion is that it's wasted effort to block users from foreign countries in case their foreign laws claim to apply, but if such a block brings peace of mind that might be worth it. While geoblocking might not be necessary, is it sufficient? There is no clear guidance on this subject, but it seems to be generally accepted that IP-based geoblocking is fine, even though it is trivially circumvented using VPN services. Of course, if a website were to block European IP addresses but were to also advertise that people in Europe can use their services via VPNs, that would probably still be an “offer” and might defeat the point of doing any geoblocking. The Art 3(1)(a) targeting criterion is most easily applied to things like ecommerce where physical goods are shipped to the customer in return for payment – so essentially whenever the data controller participates in the EU Single Market. This is roughly similar to the concept of a Nexus in US tax law. But in principle the targeting criterion can also apply to other kinds of websites or apps such as blogs, even if they are gratis. GDPR does not just apply to for-profit commercial activity, and doesn't distinguish between controllers that are entities/LLCs and controllers who are natural persons. Things are slightly more complicated due to the Art 3(2)(b) monitoring criterion and the pervasive use of online trackers on websites, but this aspect of the GDPR is difficult to enforce and frequently ignored. In this answer, “Europe” means the European Union (EU), the European Economic Area (EEA), and the United Kingdom (UK). Note that countries like Norway are covered by GDPR, whereas Switzerland is not. Of course, the GDPR is not the only privacy law relevant internationally. | Apple has rules for publishing apps on the App Store, and either you follow the rules, or your app won't go on the App Store, simple as that. What you do is either not put your app on the App Store, or make the changes they ask you to make. Why are there conflicting statements? Because Apple and Google are different companies. Does Apple ask the other company? No, why would they spend their time on this, when they can ask you to make the changes? In the end, Apple has huge pockets, so they are not going to approve anything that might give a company a way to take money out of their pocket. What you want to do sounds very much like it could give some company a pretext to sue Apple; that's one thing that Apple won't let happen. | 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. |
Search of deceased person's residence following fatal incident at work I am a British writer trying to get law enforcement procedure right in a thriller set in San Diego, CA. (There are numerous plot reasons that prevent me placing this action in e.g. the UK where I am slightly less ignorant about the law and law enforcement.) The question is, given the following circumstances, who can search the dead man's residence, and on what basis? The hypothetical situation: a man has died in an incident at work - whether it is an accident, homicide, or what we call in the UK manslaughter (which is to say death incidental to other action and without intent...) is unknown at the time law enforcement would like to perform the search (partly in hope of discovering whether a crime has in fact been committed). The man is reasonably believed to be in (legitimate) possession information concerning a threat to US National Security. Because of the national security issue, the FBI are involved in a counter-intelligence role. The information may be on computers/devices in the man's home. There is no evidence per se that the man's death was due to sabotage, but there is prima facie evidence of unauthorised interference with the employer's computer systems, which might have caused the man's death. I cannot find any basis for a warrantless search of the man's residence based on his death alone (having reviewed various sources including California Code, Government Code - GOV § 27491.3, 4th Amendment and some commentary on related Supreme Court decisions), given that he died at work. His sole living relative (daughter) does not reside at the property. She does however have a key and might therefore be considered "in control" of it. (But if so, would she have to enter the property first?) Questions: Is a warrant required/advisable to search the man's home, or could the daughter be asked to permit entry? If a warrant is required, who would apply for it? UCSD PD or FBI, and on what basis? | A warrant is required: you cannot just bust into a home because the owner died. Nothing that you describe resembles the kind of emergency situation that allows a warrantless search. In order to get a warrant, you have to have a good enough reason. Suppose that campus police found a suspicious object at the scene which was evidence of a crime and which had an identifiable connection to his home. Campus police might get a warrant to search the home, to find evidence related to the possiblity that this was a murder. That evidence could be evidence that he had uncovered a terrorist plot to bomb Needles CA, and he was killed because of that. His home computer might contain records of contact between him and the terrorists: so the judge might grant a warrant. The FBI might also go to a federal court for a warrant for a different suspected crime, for example a planned bombing of Needles. Since this involves national security, this could be a FISA court, which is a secret court for surveilling foreign spies in the US. The daughter has the (apparent) authority to consent to a search – police are not required to inquire very deeply into a person's authority to consent to a search. If she doesn't consent, the police of the FBI might have probable cause for a warrant – it has to be an articulable reason, not just a mystical intuition (TV cop shows notwithstanding) that there must have been a crime and the house has evidence of the crime. | 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. | With respect to 4th Amendment protections, which guard against unreasonable searches, Illinois v. Rodriguez, 497 U.S. 177 held that "A warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not". Cat burglar consent may be reasonable, depending on the circumstances, as could guest consent. The difference between the two is that with the cat burglar, you (as owner) can't overcome the reasonableness of the police assuming that the owner gives consent since you're not there, but with the party guest consenting, you can contradict the impression of control that the guest gave, and you can deny consent (if you are there and can contradict the guest). Georgia v. Randolph, 547 U.S. 103 addresses that point: "a physically present co-occupant’s stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him". As far as I can tell, there is no specific obligation for police to verify that the person ostensibly consenting is authorized. They don't have to ask, and they don't have to independently verify implications (e.g. if the third party says 'our apartment', they don't have to ask 'does that mean that you live here?'). A third party could say something that would make the "occupant" assumption unreasonable. | Probably murder. Because "victim 2 was then shot by this man in self defense" hasn't been determined by a neutral third party investigation or jury - it is just his own rationale for shooting. He may not be charged, or he may be tried and acquitted on the basis of self defense, but he isn't in a position of authority to simply make a "rightful death" call on his own, (is there such a thing?) and dispose of all the evidence. Obstruction of justice would probably be the minimum charge for covering up evidence of the murder of Victim #1. There is really no valid reason for covering up a double homicide, and his actions could easily result in a double murder charge. | It is probably illegal, just not pursued. In the case of something like bank robbery, you'd have a victim that filed a police report. A murder would need to be discovered somehow - either a missing person report or a dead body. If the porn shoot happened somewhere that a member of the public saw it and subsequently filed a police report, the video could be used as evidence. Absent a report, the police simply have no reason to look into it (unless the police catches them in the act, but we probably don't see those videos posted online). Why would these public offenses go unreported? Perhaps nobody sees it. Perhaps the bystanders in the video are paid extras. Maybe they're filming in what appears to be public but is actually private property. Perhaps they have a permit to use a public space for this purpose. Perhaps they just got lucky. Again, there might be some confirmation bias here - you're not going to see as many videos of folks they catch breaking the law, since they will either be interrupted and stopped or (maybe) have their videos ordered taken down. | To be determined. Warren Decision [t]he duty to provide public services is owed to the public at large, and, absent a special relationship between the police and an individual, no specific legal duty exists [emphasis added] Castle Rock and Warren denied the existence of a legal duty to specific individuals of performance of law enforcement activity given the specific fact pattern in those cases. These rulings have been generalized into what's been called the No Duty to Rescue Doctrine (NDRD). It's possible a future court could uphold those principles and apply the NDRD to the Parkland case. Or not. Depends on the arguments of fact and law made in court to that effect. The primary argument against applying the NDRD might be as you described, i.e., the specific nature of Peterson's duty assignment to Parkland. One interesting angle on this question is if Peterson owed a duty to act, then who rightfully owned the debt of his obligation? One could argue the Sherrif's department that employed Peterson was the sole lawful holder of his duty to perform and not the school or the victims. In short, it's all very complex and the specific facts at play (which are still surfacing) will be determinative as no applicable statutes or case law yet exist that extend beyond the cited references. | There is a state law that requires you to obey the police: ORC 2917.13, which says you may not Fail to obey the lawful order of any law enforcement officer engaged in the law enforcement officer's duties at the scene of or in connection with a fire, accident, disaster, riot, or emergency of any kind. If you do, misconduct at an emergency is a misdemeanor of the fourth degree. If a violation of this section creates a risk of physical harm to persons or property, misconduct at an emergency is a misdemeanor of the first degree. You also cannot Hamper the lawful operations of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person, engaged in the person's duties at the scene of a fire, accident, disaster, riot, or emergency of any kind "Hamper" is not defined statutorily, but the plain meaning of "hamper" is not the same as "fail to assist". We have not established that the order is lawful, however, which is crucial. The police cannot just freely search a residence without permission. If they have permission from the occupant, they can search and seize. If they have probable cause to believe that a crime exists and the circumstances make a warrant impractical, they can search and seize. I don't know what you mean by "wellness check", but that seems plainly to be unlawful entry. However, if the resident calls 911 and reports that he is having an issue, that is sufficient consent for entry. In the case of a fire alarm, the fire code authorizes a fire department official in charge of an actual emergency response incident to order the evacuation of a building, and occupants are required to comply. If we suppose that the smoke detector in a room has gone off, the fire department is authorized to inspect for fire, and there is a provision under the law about failure to obey a lawful command (to open the door so that they can look for fire). Problem: you cannot know whether the order is lawful. The officer doesn't decide what is lawful, the courts do (after the fact), and typically a command is found to be lawful unless it is clearly unlawful. The order from your supervisor is not "enforceable" in the sense that you cannot be arrested, imprisoned, or fined for disobeying your boss. However, there is a potential club they can use against you, namely firing you for disobeying the order. Normally, you can be fired for wearing the wrong shirt. But there are laws about employers doing illegal things, such as ORC 4113.52, which provides recourse when the employee reasonably believes that the violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety etc. In which case you report this to the supervisor, they have 24 hours after getting the report to correct the situation, and after that you would report the situation to the county prosecutor. (Read all of the details in the linked law, don't just skip steps: this is an executive summary). Having done this, you are protected from being fired, demoted. reassigned etc. The employer will be strongly motivated to not incur the penalties for violating the whistle blower statute. Additionally, you can sue the employer if they fire you for refusing to violate the law (termination in violation of public policy). | united-states In the US, the default rule is that your home is your castle. In general, nobody, not even the police, can enter your home without your permission. The main exception to this rule is that police do not need your permission if they have a search warrant to search your home. To get a warrant, the police must convince a magistrate that they have good reason (ie, "probable cause"), such as a gps track, to believe they will find evidence of a crime if they search the house. The police in your hypothetical are in a similar situation to police who are tracking the gps signal from a "bait car/bike/phone/tablet/package." (A bait car is a car/etc that has been fitted with a camera and gps tracker, and left out as bait for thieves.) As long as the car is in public view, the police do not need a warrant to search it and arrest the person driving it. However, once the bait car is out of public view, where the police can no longer see it, they need a warrant to go in and recover it, even if they can see it on the tracker. (See, for example, the instructions for bait car programs from the Eugene and Reno Police Departments.) (For phones, which may not be in "plain view" even if the thief is, the police use ring programs to make the phone ring. Hearing a phone respond to a ring program gives them probable cause under the "hearing" version of the "plain view" doctrine.) Bottom line: In the US, the police need a search warrant. Since search warrants take time and effort, police may be unwilling to get a warrant for something as low valued as a phone. If the police can't or won't help, there are various options for privately enforcing one's rights. These range from the legal -- knocking on the door and confronting the thief -- to the illegal -- left to your imagination. |
Why is only physical abuse illegal, but not other forms of abuse? In my understanding, there are 4 forms of psychological abuse: physical abuse, emotional abuse, sexual abuse, economical abuse. However, only physical abuse is illegal, and thus can be intervened. But, psychologically speaking, other forms of abuse are also impactful as well. Especially the case of manipulation. And there are also signs and symptoms to conclude whether such abuses happen or not. So why they aren't illegal? Or perhaps it's more about evidence rather than law? To quote one person: There is no finite definition of mental/emotional abuse. No protocols or reference to state what's harsh, excessive, just bad parenting... and there are no legal definitions. Its not like physical abuse where you have concrete signatures. It's a very destructive abstract so prevalent... hell, we know the damage it causes long term, have long known it, but as hurtful as it is, its technically not illegal. Unless it causes a physical manifestation like suicide... the occurrences are typically denied and its shrugged off. I'm asking about adults as well, not just children. I just can't find a suitable tag. | Subsection (3) of The Domestic Abuse Act (Scotland) 2018 defines abusive behaviour as: (a) making B dependent on, or subordinate to, A, (b) isolating B from friends, relatives or other sources of support, (c) controlling, regulating or monitoring B’s day-to-day activities, (d) depriving B of, or restricting B’s, freedom of action, (e) frightening, humiliating, degrading or punishing B. and also In subsection in paragraph (a), the reference to violent behaviour includes sexual violence as well as physical violence, So there are some jurisdictions where the examples you list are illegal. EDIT: I'm not a lawyer, so can't provide much more insight into the evidentiary requirements of this Act. The Assistant Chief Constable of Scotland was quoted as saying that law officers and staff have "received further training on the dynamics of power and control in abusive relationships to help recognise the signs, identify investigative opportunities and to tackle the myths and misconceptions of abuse that still exist.", but no indication of what that amounts to in practice regarding evidence thresholds. | Is receiving intimate stimulation while driving illegal? Under Michigan law, it seems illegal. What you describe is one particular case of a general family of scenarios where recklessness or negligence are elements of a driver-related offense. Thus, it would be inefficient and redundant to enact a statute to prohibit that specific hypothetical situation. MCL 257.626(2) sanctions the operation of a vehicle in willful or wanton disregard for the safety of persons or property, and as you mention It's pretty obvious to me why this is a dangerous practice MCL 257.626b sanctions the operation of a vehicle in a careless or negligent manner likely to endanger any person or property, but without wantonness or recklessness. A prosecutor might try to file charges also on the basis of MCL 750.335, which sanctions "open and gross lewdness and lascivious behavior". | tl;dr No, it won't be a viable defense. Background Touch has an established interpretation at common law. The common law is judge-made law. If an offense involving touch existed at common law, then the meaning of touch is "defined" by the judicial opinions themselves. As the comments have noted, you'll be able to find hundreds of years worth of opinions where judges have, by example, determined what qualifies as touching. Putting your hand on someone, yes. Spitting on someone, yes. Blowing from a distance, no. These examples make up the common law definition of touch. But how, you may ask, would the common law evolve to include new information? The answer is clear. Say Jill purposely hits Jack in the face with a shovel. When appearing before the judge, she says, "we have a new understanding of atomic proximity, so technically the atoms in the shovel never made contact with the atoms in Jack!" The judge will say, "that's interesting, but it seems irrelevant to what we're trying to accomplish with the law: Jack still had to go to the hospital. Judgment for Jack." Now the common law has incorporated the new information (...at Jill's expense). Touch isn't defined at the atomic level when interpreting a statute. Some offenses are defined, not by judges, but by statutes enacted by legislatures. If the language in the statute is ambiguous, courts have to interpret its meaning. This is often done by looking at the purpose of the statute or by looking at the plain meaning of the language. Statutory interpretation: purpose Where a court does not employ the plain meaning approach, it will often look for evidence of the drafter's intent. In this case, the court would ask what the purpose of a law like battery is. They'd probably conclude it has to do with preventing harm and offense. In fact, they probably included things like that in the statute itself. So they'd wonder if defining contact at an atomic level would help to prevent harm and offense; that seems unlikely. In so doing, the court may analyze the legislative history. It may look at events that happened around the time the law was enacted: did the legislature propose it because people were hitting each others' faces with shovels? It might even appeal to the state of the common law at the time the statute was enacted for the proper definition. Statutory interpretation: plain meaning First, it might help to look at an example from District of Columbia v. Heller, 554 U.S. 570 (2008). There the Court was tasked with interpreting some Second Amendment text. In doing so it said, "we are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings." Id at 576-77. Statutory interpretation also makes use of this plain meaning approach. As stated by the Court, "where the language of an enactment is clear, and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.” United States v. Missouri Pacific R.R., 278 U.S. 269, 278 (1929); see also Black's Law Dictionary (10th ed. 2014). This is bolstered by the practice of explicitly defining words with technical meanings in a definitions section of the statute. For example, Article 9 of the Uniform Commercial Code employs a number of terms in a technical sense, and 9-102(a) defines 81 words that are intended to take on a technical meaning. Another example is the Illinois battery statute, 720 ILCS 5: Sec. 12-3. Battery. (a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. The statute doesn't have a technical definition for "physical contact." So under plain meaning we'd construe it in its common sense. Merriam-Webster's Dictionary (a favorite of U.S. courts) defines touch as, "to bring a bodily part into contact with especially so as to perceive through the tactile sense." That definition implies that tactile sensation is what triggers (2), not any atomic concept of proximity. If you're interested in further reading, proper interpretation of the term "physical contact" came up in the insurance contract setting in Mount Vernon Fire Ins. Co. v. Busby, 219 Cal. App. 4th 876 (2013). united-states | Owing to the First Amendment, in the United States your recourse would be limited to civil action based on violations of terms of service (meaning that "the authorities" are not going to knock on their doors to tell them to behave). This is not "spam" (which could be regulated) as the term is generally understood. It is annoying, but probably does not constitute threatening or child porn. It might involve violation of an anti-impersonation law such as this one from Texas, if the offender uses the persona of a real person as opposed to a fictitious person). That law, moreover, does not criminalize simple annoying. Prosecution may be possible in the UK. | Legal Context This kind of argument is often called a "defense of others" defense which is available in every jurisdiction of which I am aware. Almost every state has a specific description of when this is permitted as part of their criminal code, usually in a general principles section at the beginning, or in the sections pertaining to crimes of violence. Some details vary from one state to another, but none of the facts presented in this hypothetical really push the envelope in terms of distinctions between one state's law and another. Most of the differences involve situations when the use of deadly force is allowed. For example, states differ regarding when deadly force allowed to prevent a burglary of your home or business which is in progress, particularly if it is possible to avoid a use of deadly force at all by retreating in a manner that puts you at no one at any significant risk of bodily injury. But, the scenario presented does not appear to involve the use of deadly force (although the definition of "deadly force" can be slippery and lead to some subtle variations in what is permitted from state to state). Another common nuance of variation between states involves the circumstances under which physical force or deadly physical force is authorized to make a citizens arrest, but this situation is also not implicated by your hypothetical. Once Thug is beat up, the scenario ends without any effort to detain Thug until the police arrive. Generally speaking, a defense of others defense that justifies a use of force under criminal law will also not give rise to civil liability in a lawsuit for assault and battery as opposed to a criminal prosecution for it. A Sample Defense Of Others Statute The pertinent section of the Colorado Revised Statutes (2016), strongly influenced by the language of the Model Penal Code (which never adopted in full by any state but highly influential stylistically in how U.S. criminal codes are drafted) is very typical of the majority rule regarding the defense of others and reads as follows (emphasizing the language relevant to the scenario in the question): § 18-1-704. Use of physical force in defense of a person (1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose. (2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and: (a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or (b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204 ; or (c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203. (3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if: (a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or (b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. (4) In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes. Analysis of the Hypothetical Facts Is Paul guilty of assault and battery for attacking Thug, or would self-defense or some other standard defense apply? Paul is probably not guilty of assault and battery for attacking Thug because a defense of others defense justifies his actions. Paul is using physical force to defend a third person (and presumably himself as well once once he is involved in the fray) from what he reasonably believes to be the use of unlawful physical force by Thug, and generally, under those circumstances Paul may use a degree of force which Paul reasonably believes to be necessary for that purpose. Paul is most vulnerable in this scenario on the question of whether he reasonably believed that the degree of force he used was reasonably necessary for the purpose of defending Emily and himself from Thug's unlawful use of physical force, or whether he went further than what was reasonably necessary for a few minutes that left Thug "incapacitated and thoroughly bloodied". For example, suppose that Paul had already caused Thug to try to flee the scene after the first minute at which point Thug was slightly bruised and afraid of Paul, but was not at all incapacitated. But, suppose that despite this fact that Paul, awash with adrenaline from the fight, continued to pummel Thug for a couple more minutes as Thug repeatedly tried to flee the scene only to be dragged back by Paul. Suppose that Paul continued the fight after it was no longer necessary because Paul wanted to punish Thug for his mistreatment of Emily and to discourage other people from trying to attack Emily in the future, even after Paul knew that there was already no real risk that Thug himself would continue to use unlawful physical force against Emily no or in the near future. Under these circumstances, which aren't inconsistent with the hypothetical facts, if this extra couple of minutes caused Thug to be much more badly injured than he otherwise would have been if Thug had been allowed to flee after the first minute, then Paul could still be guilty of assault and battery, even though his actions were legally justified for the first minute of the fight. There is no indication that either Paul or Emily provoked the attack on Emily, or that either Paul or Emily was the initial aggressor, or that this was actually a pre-agreed dueling situation. So each of these circumstances which would be exceptions to the general rule that the defense of others is justified do not apply to this case. There is likewise no indication that Paul used "deadly force" as opposed to mere "physical force" in handling the situation. It is likely that Paul would have committed a crime if he had shot and killed Thug instead of beating him up, if Paul knew perfectly well at the time that he was capable of beating up Thug and making Thug go away for good as a result without resorting to a firearm, unless the attack on Emily was severe enough for Paul to reasonably believe that the attack was putting Emily at a real risk of serious bodily injury. | 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.” | Some people seem to believe that just because something happens 'in the internet' it is somehow outside normal jurisdictions. Wrong. In may be harder to investigate and prosecute crimes in the internet, but the laws apply all the same. There are some problems when it is unclear 'where in the world' something did happen -- in the jurisdiction of the perpetrator, the victim, or the service provider? But problems of jurisdiction apply e.g. to international fraud cases in the non-web-world as well. In many jurisdictions, the informed and voluntary consent makes some things legal which would otherwise be illegal. For instance, if two boxers get into the ring, it is understood that each of them did consent to be hit by the other. But usually two fighters could not legally agree to a fight to the death, because even if there are laws on assisted suicide, they do not apply to a fight. Insults, libel, and slander are not on the same level as homicide. There are jurisdictions where they are not prosecuted without the request of the victim. But an insult might also violate other laws, e.g. disturbing the peace. So don't bet on such an app unless you know for sure which jurisdictions are involved. | In Germany, the noise of playing children is defined as not noise according to §22 BImSchG. Normal industrial/commercial limits do not apply. This aims mostly at playgrounds, kindergartens, etc. The noise of cars, stereos, etc. is not unlimited even before 22:00, but it is considerably harder to get the police to intervene during daytime. You might consult with a lawyer to find out if they are unreasonably noisy, you are unreasonably thin-skinned, or both. Similarly, the driving you describe may be violating traffic regulations, but proving that will be difficult. As to actual damages to your premises, what happens depends on the age of the children and if they had proper supervision by their guardians. Proper supervision does not require the guardians to stand next to the children around the clock. If you have a specific case, and if the "perpetrator" was over 7 years old, you can ask for repayment and then sue if they refuse. This is most likely more hassle than the damage is worth, even if you do get a judgement against a minor, but it could change the tone of the relationship with your neighbours. They would have to explain in court what they did to supervise their children ... |
Is selling forgery-producing equipment a crime in the United States? There are new opportunities emerging in forgery, including digital forgery of e-documents, deep-fake technology for creating false evidence, and 3D printing of the equipment (e.g., embossing tools) for creating fake official documents. Does it constitute a crime to sell such software or equipment to someone who uses it for forgery? Even if not chargeable as forgery, would selling such things be possibly considered conspiracy or accessory to the crime? If so, what factors would make one criminally liable? For the sake of the argument, let's say I advertise the product as "perfect for pranks, gags, and forgeries." | Possibly: remember that we have 50 different states and their laws plus the federal government. Alabama criminal code §13A-9-9 define the crime of "possession of a forgery device", which is when one makes or possesses with knowledge of its character any plate, die or other device, appliance, apparatus, equipment or article specifically designed or adapted for use in forging written instruments with intent to use it himself, or to aid or permit another to use it for purposes of forgery. Selling is covered under the fact of possession. Arizona has a similar law, referring to the situation when a person Makes or possesses with knowledge of its character and with intent to commit fraud any plate, die, or other device, apparatus, equipment, software, access device, article, material, good, property or supply specifically designed or adapted for use in forging written instruments. Makes or possesses any device, apparatus, equipment, software, access device, article, material, good, property or supply adaptable for use in forging written instruments with intent to use it or to aid or permit another to use it for purposes of forgery. Federal law would be covered here: §474 covers any plate, stone, or other thing, or any part thereof, from which has been printed, or which may be prepared by direction of the Secretary of the Treasury for the purpose of printing, any obligation or other security of the United States, uses such plate, stone, or other thing, or any part thereof, or... but this could not be reasonably interpreted to include a printing press, and would not cover a gadget that forges passports (Dept. of State, not Treasury). There isn't a federal statute with the breadth of the Alabama law. Any such law would have to include an "intent to forge" element. | The ultimate question is whether an obviously joke enterprise constitutes a real offering of securities or just performance art (a Ponzi scheme is one of many types of securities fraud). An unregistered offering of securities that does not fall within an exception is per se unlawful under federal law, but a security is generally defined as something offered with at least a prospect of making a potential profit for the investor which is not something that is true of this offering. (And if less than $1,000,000 are sold it might even be within an exemption to securities laws). State securities laws are divided into two categories. Most allow any offering of securities so long as proper disclosures are made and the offer is restricted to the right kind of investors. A minority impose substantive quality standards on offerings and this offering might violate the law in those states (although this still would present the question of whether a known money losing opportunity is really a security since there is no evidence of an intent to potentially make a profit from the investment). I do not believe that California imposes substantive quality of investment standards on public or private offerings of securities. Any deal whether or not it is a security is actionable if it is fraudulent. Normally an element of any claim for fraud is justified reliance upon a representation or upon a failure to disclose information. But, in this case, it is hard to see how anyone could say that they were justified in relying on any representation in making a purchase because they were told that they were being cheated. So, it is hard to see how a fraud claim would be sustained here either. I'm not sure that this cleanly falls into the category of gambling either, even though there is money at stake and the outcome isn't entirely certain. This doesn't really seem like a game of chance to me. Indeed, viewed as performance art, this scheme might even be entitled to First Amendment protection. Ultimately, I would not prioritize a civil or criminal action against this enterprise either from the perspective of a private lawyer representing an investor, or from the perspective of a government enforcement authority. And, while I would be a little nervous about running this enterprise, I wouldn't be quaking in my boots. In a civil lawsuit, any award would probably be minimal, and in a criminal case there would probably be an extremely generous plea offered. | Am i going to jail? I'm so scared. No, probably not. The details depend on jurisdiction, but normally the only crime you could be accused of would be that of forgery. However, forgery by definition requires an "intention to deceive". So my personal advice would be to come clean immediately: Go to your employer, and tell them you did not understand the checkout system and accidentally signed yourself, instead of having the customer sign. If you do that, what you did would not count as forgery, because (as you explain) you did not do it on purpose to trick someone. Now, your boss may still decide to discipline you in some way, maybe even fire you, but that's out of your hand. If they are reasonable, they'll hopefully understand a minor mistake on the first day. That said, it is possible your jurisdiction has special penalties for incorrectly filling out medical documents, so there may be more to it - but I doubt it. To be sure, try asking someone you know and trust who is familiar with the legal rules around medication. Or book a single consultation with a lawyer - this is not cheap (typically around $100 in the USA, or 100€ in the EU), but will give you peace of mind. You could also try asking around if there is a local initiative which offers legal help, possibly a professional organization or trade union. | The relevant section of US patent law was already posted in an answer on one of the questions you linked, but I'll repeat it: 35 USC 271 (a): Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. Merely making a patented invention is infringement; it isn't relevant whether you sell it. It is also infringement if you use it yourself, regardless of who made it or whether you paid them, or whether you would have otherwise bought it from the patent holder. There are some special exceptions for things like certain kinds of pharmaceuticals, but I browsed the rest of 35 USC Chapter 28, and didn't see anything that would appear to be relevant in this case. | Generally, it's illegal. You are creating a derivative work and you are not allowed to do that without the permission of the copyright holder. Some jurisdictions may have exceptions, such as fair use under US law. However, this generally protects uses that are intended to comment on or parody the work. It doesn't sound like that is the purpose of your image modification. NOT including: faceswaps, modifications that would shame or affect negatively the reputation of the actors on the image. That doesn't make it legal. I share it in a way that I don't make any economic profit out of it, and clearly stating that it is a modified image (not sure if inside the image, or in the caption under it) and state who is the legal owner of the original image. That doesn't make it legal, either. | W&H can avoid legal problems by reporting the suspected crime to the relevant tax authorities (IRS, Pennsylvania and the other state, let us say Ohio). This can even be done anonymously, although doing this non-anonomously provides strong evidence that W&H are not parties to the crime. Filing with a false address could constitute a violation of 26 USC 7206, when one Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter "Could" comes from two issues. First, L has to not believe that this is their true address, and second, the address has to be a material matter. The tax form and instructions require you to supply an address, but do not define any rules for what can be "an address". The IRS does define a concept of "tax home" which is the city where you work, bit that is relevant only for deductions related to travel. At least w.r.t. federal taxes, it is not obvious that this is a material matter, unless one is relying on state-specific standard sales tax deductions as part of deduction itemization. The government would also have to prove that they did not believe that the PA address is their "home address", a position that is facilitated by the lack of indication of what qualifies as a "home address". Para 2 of the tax fraud statute might apply to W&H, which target one who Willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document As described, you have not taken an illegal action, e.g. you have not encouraged, condoned, written in false information, etc. What you have done is not reported a possible tax crime that you are aware of. There are various federal laws whereby a person in a "special" position is obligated to report a suspicion of a crime (law enforcement w.r.t. child sexual exploitation, etc), but there is no general legal obligation with criminal penalties whereby you must report a suspected federal crime. This is a good thing, because a criminal conviction can be a conditional bar to citizenship, under the category of Crimes Against the Authority of the Government. Actually lying about L's residence moves this into the area of a well-defined felony offense, 18 USC 1001 (lying in a federal matter), which would clearly cause citizenship problems. The same set of questions and answers would arise w.r.t. PA and (presumptively) OH tax laws. In this case, though, there is most likely a crime – tax evasion in OH. I say most likely because I don't know if they filed a fully truthful Ohio tax form, or a fully truthful PA tax form. But if they lived in Ohio and yet did not report their Ohio income (and instead filed a PA income tax form), they did not comply with ORC Ch. 5747, esp §08 and §15, which incurs penalties (but is not a crime). As with the matter of federal income taxes, W&H do not have a legal obligation to report suspected crimes, but they must not actively aid in the commission of a crime. | In general, you cannot contract to do anything illegal. However, ... An argument could be made that permission has been granted to, for example, enter property and remove the item. If permission has been granted, entering property and taking an item is not a crime. | The only real answer is that Congress hasn't (to the best of my knowledge) chosen to pass such a law. But the kinds of forgery that Congress might plausibly and constitutionally prohibit, such as forgery of checks, forgery of legal documents, and forgery as part of a fraudulent scheme are already crimes under state law, and the states handle such prosecutions perfectly well. There is really no need for a separate federal law on such issues. The kinds of forgery covered in the answer b grovkin would probably not be covered by a federal forgery statute, if one were to be passed. But that is speculation. |
Is the EU Settlement Scheme legal? I moved to the UK 20 years ago when I was a 14-year-old child. I settled here - studied, worked, started my own business, had kids and so on. Because of the EU membership, I was guaranteed equal treatment with nationals in access to employment, working conditions and all other social and tax advantages. Now, because of Brexit, I have been told that in order to stay I need to apply for settled status. Isn’t this discrimination since nationals do not have to apply? Isn’t the UK Government breaking the law? I am very worried and distressed at the idea of having my name and personal details in such register. With this scheme, is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing? Is there any ground for challenging this scheme legality in court? Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)? Edit - clarification Some suggested I naturalise but I don't want to because I don't feel the UK is my homeland and I don't share some British values (for a start, I am not a royalist so I would have a problem with the registration oath...). Also, there is a considerable cost associated to this process. Edit - ask for clarification Some suggested that discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race) Article 14 of ECHR prohibits discrimination based on: "sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or other status" Would you not consider EU Citizens residing in a foreign country of other national or social origin or even just of other status? Also: The European Court of Human Rights has ruled that European Union member states cannot consider the nationals of other member states to be aliens Doesn't the settled status scheme contravene this, while the UK is still part of the EU? | Isn’t this discrimination since nationals do not have to apply? Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race). And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply). The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident). Isn’t the UK Government breaking the law? This could go against EU treaties, but the point is that the UK will no longer need to comply with them. is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing? No, the UK Government is not responsible if you do not like its laws to the point that it affects your health. Is there any ground for challenging this scheme legality in court? Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it. Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)? If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now. Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you. | Under UK law what kind of payment is it? Is it the same thing as a bonus? Essentially yes What rules apply? Assuming the employee is standard PAYE then the money will be subject to tax and NI the same as any other lump sum salary payment. For example, can an employer do as they wish? is it entirely dependent on what's in the contract? is it legal to give to everyone except those working their notice period? Things like this aren't typically specified in a contract - and as such are almost completely discretionary. They can exclude people working their notice period, people who have less than a certain amount of time employed etc. What they can't do is exclude people based on protected characteristics - they can't say "Only women get this" or "Only white people". | No The argument is vacuous in any event because AFAIK all jurisdictions that enforce sex discrimination laws have parental leave (paid or unpaid), not maternity leave so a man is just as likely to need it as a woman. This, of course, raises the issue of discrimination by marital status (on the basis that unmarried people are arguably less likely to have children) or age (on the basis that people outside 'childbearing' age are less likely to have children; fortunately these types of discrimination are also illegal. Notwithstanding, the loopholess you think there are in the laws are simply not there. For example s14 "Discrimination in employment or in superannuation" of australia Sex Discrimination Act 1984 starts with: (1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: Later in s30 "Certain discrimination on ground of sex not unlawful" it says: (2) (a) the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of a different sex from the relevant sex; If the job requires excessive strength or stamina, then you test your recruits for the level of strength or stamina the job requires. | When the person has been naturalised, that is, when the US government officially recognises them as a US citizen. There are many pathways to citizenship and the ones on the linked page are pretty typical across the world although the details vary: residence for a period with or without marriage to a citizen service descent. | The EU-wide 48 hour limit and the German Arbeitszeitgesetz only apply to employees, not to self-employed persons or freelancers. Thus, it would in principle be legal to have a full-time job and do any amount of freelancing on the side. I'm not sure whether your PhD student position factors into this since it is unpaid. If you have multiple employers, the sum of working time matters – this is one reason why you have to notify your employers about additional jobs. One employer cannot check your time with another employer, so you should inform them when your shifts change (while employers can assign you shifts, they must consider your personal circumstances). But self-employment is not employment. If you take this offer, you would act as a German business, perform work in Germany, pay taxes in Germany, but have an UK client. (Assuming your work would be done remotely rather than travelling to the UK to perform your work there). Freelancing would also mean that you'll meet the wonderful world of German bureaucracy, including registering with the Finanzamt, writing invoices, doing accounting, filing taxes, dealing with VAT, and trying to navigate a no-deal Brexit. At least your work likely counts as freiberuflich rather than gewerblich, which would free you from a Gewerbeanmeldung. Your don't have to seek permission from your employer when taking up a side job, but you must notify them. They can object if your side job would impact your work. This would clearly be the case when working for a competitor, or when your side job would bring you over the working time limit. Since you work in the public sector, there may be additional rules (parts of Beamtenrecht apply to your employment relationship). While the working time limit does not apply to freelancing, this might still impact your job if you get too little rest, or if you would become unavailable for your main job during normal working hours. Taking up a side job despite an objection could be cause for immediate termination. Note also that you cannot generally use vacation days to work a side job since vacation is intended for recuperation. To summarize: you would not work an UK job, but be employed in Germany and be self-employed in Germany the working time limit only relates to employed work, not self-employed work your employer may nevertheless be able to object to you taking up another job if it would affect your work | This is a partial answer as it doesn't address the religious aspect. Grainger plc v Nicholson may be of relevance. That case was about Article 9 of the European Convention on Human Rights (freedom of religion or belief) and focussed on the belief element rather than the religion element. The court held that the following criteria must be met for something to be a belief under the ECHR: The belief is genuinely held. It is a belief and not an opinion or viewpoint. It relates to a weighty and substantial aspect of human life and behaviour. It must attain a certain level of cogency, seriousness, cohesion and importance. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others. These are known as the Grainger criteria and are also of relevance in relation to Section 4 of the Equality Act 2010. | The UK remains an EU member state until 31st October 2019. Unless a further extension is requested and granted. (One is obligated to be requested if an agreement is not reached by the 19th Oct) At the time of writing, there have been no changes to identity document requirements for EEA (includes EU) or Swiss citizens visiting the UK - they can enter the UK with a valid passport or a national identity card issued by such a state. We don't know today whether that will change after March 2019. | Why would the EU expect that any of its laws would apply to my business? It doesn't. Unless you choose to do business in the EU (which is possible, thanks to the wonders of the World Wide Web). Then, and only then, do you have to comply with EU law, including the GDPR. From a comment by @BenCollins: I'm talking about non-EU online retail that does allow Europeans (particularly those not actually in the EU at the time of the transaction) to place orders. Basically, GDPR Article 3 says that the GDPR applies to the processing of personal data of data subjects who are in the Union The phrase "in the union" is clearly open to interpretation, but according to the website Security Now, Dr. Michèle Finck says this: Most people seem to agree that the relevant criterion is whether you're based in the EU at the moment data is collected - citizen or not (my emphasis). While Michèle Finck is a well-respected legal scholar, she is not an authoritative legal source, so we need to wait for to case-law to nail this. For what it is worth, (not much I am afraid) I think it would be against common sense to define the territorial scope so broad that brick and mortar stores in the USA risks to be prosecuted in Europe if they sold goods or services to European tourists. However, what most US based businesses that chooses to be open to business for orders that are placed by natural persons who are in the [European] Union need to know that there is this: According to European law, the GDRP does apply to them when they conduct such business. From a comment by @BenCollins: I question the notions that (a) there is a basis by which the law would apply The legal basis is European law, in particular GDPR Article 3. and (b) that it has any enforcement mechanisms outside the EU. As for enforcement, I think a good answer has already been provided by Dale M. but for completeness: The USA has treaties with EU that mean that after a legal case has been decided in a court of law in the EU, it can request that the USA enforce the judgement (typically by collecting the fine the USA-based business incurred when conducting business in Europe). To make this answer more general, here are a breakdown of the the regulation of territorial scope of the GDPR for businesses that are not located in the EU: The scope is clearly spelled out in Article 3, and if you're not "a controller or a processor in the Union", you are only subject to the GDPR if your processing activities are related to: a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or b) the monitoring of their behaviour as far as their behaviour takes place within the Union. US based companies that engage in business practices that are illegal in Europe know about this, and has already taking steps to protect themselves from the being prosecuted in Europe under the GDPR by using firewalls to block access to their services from the EU. The bottom line is that if you: have no presence in Europe, and don't offer goods or services to people who are in the Union, and you don't collect personal data about European natural persons, then the GDPR does not apply to you. If at least one of the above applies then you need to follow the GDPR if you do not want to be prosecuted in the EU. |
When is a summary a derivative work? When is a summary a derivative work such that it needs the fair use defense to be legal? For example, consider the following: Farm boy fights evil empire. I don't think that this summary of the original Star Wars trilogy would count as a derivative work, since it it can be used to describe more works of fiction than just Star Wars. So, is a summary being specific enough that it only describe one specific work sufficient for it to a derivative work? Necessary but not sufficient? Or what? (Or if my question is meaningless/pointless, please explain why.) NOTE: I am NOT asking about when a summary is infringing. I'm only asking when a summary is a derivative work, regardless of whether or not it's infringing. | Ultimately whether one work is derivative of another is a question of fact, and there is no absolute rule beyond taking it to a court. Many cases are clear. A Full translation is obviously a derivative work, The definition in 17 USC 101 is: 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”. A mere description of a work, such as a one-paragraph summary, is probably not a derivative work, but as the summary gets longer and fuller, it starts to approach an "abridgment or condensation". One test is if the summery could reasonably replace the original, at least for some consumers. But there is no clear cut place to draw the line. By the way, If something is a derivative work, it is infringing provided only that the original is in copyright and the creator of the derivative did not have permission from, the copyright holder on the original. Fair use may prevent an adverse judgement, but is still an infringement. As the question referred to fair use, a strictly US legal concept, I am assuming US law here. | Copyright does not protect facts. If you use the media article as a source for facts, but restate them in essentially different words and with a different organization, you need no permission. Ethically you should cite your source, and attribute any brief quotes, but that is probably not legally required. | No, it does not fall under fair use: It is commercial use in nature It is a copyrighted work It is hard to say what portion of the copyrighted work you'd be using based on your description, so test three is inconclusive It could be argued in your favor that the infringement would not have an impact on their potential market, but it could potentially impact the value If discovered the owner of the copyright could pursue action against the company you work for. | According to US law according to Cornell, copyright applies to derivative works. A derivative work is an original work based on a previous work (Definitions), so the adaptations would be copyrightable unless they were held to be unoriginal. In general, the courts don't require much creativity to consider a work original. Translations are original works. Therefore, the adaptations are almost certainly under copyright, while the originals remain public domain. | The relevant concept is dedicating a work to the public domain, that is, saying in the work something like "This work is dedicated to the public domain". I understand that this isn't entirely reliable in European civil law. The preferred alternative is to license it to the public. However, you have to decide how "free" you want the work to be made. The normal state of affairs, where you do nothing and just rely on copyright law, is that you have the sole right to allow copies to be made and derivative works to be created. Thus if someone were to make a derivative work based on your composition, they would need your permission: but then they would have the right what they created (such as a translation). If you just abandon your property right to the work, you impose no obligation on others, and a person can freely create a translation (which is now their property). If you execute the right public license, you can allow people to use your work as long as they include that license in their versions. A fairly common public licensing scheme is the Creative Commons licenses. That article gives a decent summary of relevant rights and how particular licenses correspond to configurations of permissions. I would say that the most difficult thing to do is to figure out what you don't want to happen, and pick a license that matches that interest. | No B holds no right to a copyright, if his work infringes on A's right to X. So he can't win against A and neither C or lawfully demand a C&D from C. See Anderson v. Stallone, 11 U.S.P.Q.2d 1161 especially IV A 4: Since Anderson's Work Is An Unauthorized Derivative Work, No Part Of The Treatment Can Be Granted Copyright Protection Stallone owns the copyrights for the first three Rocky movies. Under 17 U.S.C. section 106(2), he has the exclusive right to prepare derivative works based on these copyrighted works. This Court has determined that Anderson's treatment is an unauthorized derivative work. Thus, Anderson has infringed upon Stallone's copyright. See 17 U.S.C. section 501(a). [...] Plaintiff has written a treatment which is an unauthorized derivative work. This treatment infringes upon Stallone's [*31] copyrights and his exclusive right to prepare derivative works which are based upon these movies. 17 U.S.C. § 106(2). Section 103(a) was not intended to arm an infringer and limit the applicability of section 106(2) on unified derivative works. As the House Report and Professor Nimmer's treatise explain, 103(a) was not intended to apply to derivative works and most certainly was not an attempt to modify section 106(2). Section 103(a) allows an author whose authorship essentially is the arrangement or ordering of several independent works to keep the copyright for his arrangement even if one of the underlying works he arranged is found to be used unlawfully. The infringing portion would be easily severable and the scope of the compilation author's own work would be easily ascertainable. Even if this Court were to interpret section 103(a) as allowing an author of an infringing derivative work to sue third parties based on the non-infringing portions of his work, section 106(2) most certainly precludes the author of an unauthorized infringing derivative work from suing the author of the work which he has already infringed. Thus, the Court HOLDS that the defendants are entitled to summary [*32] judgment on plaintiff's copyright claims as the plaintiff cannot gain copyright protection for any portion of his work under section 103(a). In addition, Anderson is precluded by section 106(2) from bringing an action for copyright infringement against Stallone and the other defendants. Note that any change to a work - even a single stroke or word, or cutting out a single frame - makes something out of necessity a derivative work. No alteration whatsoever makes it a pure copy. And using figures from a work in a different setting makes them, by necessity, a derivate, as in Anderson v Stallone. However, even if B's work was licensed or fair use (which can be done by critically recutting a work as in the h3h3 case or in Akila Hughs v Carl Benjamin aka Sargon of Akkad) and thus doesn't infringe on A's right, C still doesn't infringe on B's work: C's work is a (recreated) copy of A's original work, making it an infringement of A's work, but not B's altered work. Fair Use is explicitly not infringing under 17 USC § 107 | When you are citing a source to back up your statements, you may generally quote a reasonable amount. Under US law, this will be a form of fair use Under the laws of other countries, this may be permitted under one or another exception to copyright. The available exceptions and how they work vary from country to country, but reasonable quotes should be allowed in almost every country. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? You should: Make it clear what content is quoted, who originally wrote or said it, and when and where it was published; Quote not more than is needed to support your point. Not quote in such a way that your work can be used as a substitute for the source work. If you are not making a reference quote, but merely reusing an idea from a source, it is usually better to write the idea in your own words, not closely following the structure or wording of your source. However, if you are criticizing or commenting on what another author has written, you may (and should) quote enough to show what your comments or critique refers to. The same principles apply as with a reference quote: make what is quoted clear; attribute the source; and quote no more than is reasonable needed for your purpose. Consider whether you really need to quote "long paragraphs" or can just quote key sentences, perhaps along with paraphrases of the rest. If at all possible, the parts you quote should be only a small proportion of the source work. | Numbering is for the sake of clarity, and is not intrinsically required. If you refer to a section, you need a way to say which section you mean, and a vague description like "up there where I talked about copying" is insufficient. You can refer to a section by a title, if you need to refer to sections within the contract, as long as your titles match what you refer to them as (and you don't have two sections called "Your Rights"). |
Legal to use Alexa in childcare setting without permission? This is in the UK. For anyone who might not know, Alexa is an AI voice command application often attached to other devices. It lets people issue demands for things like music, or ask it questions, such as, "Who was the first man on the moon?" In its default mode, it constantly listens and records. These recordings are apparently only kept when the wake word is used. The voice recording of some time prior to the wake word, plus the command issued, is sent to the cloud so it can be deciphered and turned into something the device can process. Example: "Play [song title]." Questions: In a childcare setting, is it legal for Alexa to constantly be listening around the children? In a childcare setting, is it legal for voice recordings of commands the children give Alexa to be made in the first place, and then sent to the cloud? This is under the assumption the parent/guardian has not been made aware of Alexa being in the setting, or that it is being used with the children. No permission has been given. I know the law on voice recordings is difficult to pin down, and I couldn't find anything pertaining specifically to Alexa, so I wondered if anyone here might know. | It is neither legal nor illegal, but would depend on the circumstances. For example, such use of a smart assistant might be perfectly fine if the childcare provider could demonstrate a legitimate interest for using the smart assistant, and gave reasonable notice about audio being recorded. Parental permission is likely not necessary. In practice, doing this right would be far too much effort. For example: Has the necessary information per GDPR Art 13 been provided, taking into account the EDPB guidelines on transparency? Under what legal basis are conversations sent to Amazon, an US-based provider, taking into account the Schrems II ruling? How will data subject rights be satisfied, in particular the right to access to these recordings, the right to erasure, and the right to object to further processing? Having discovered such processing of personal data that isn't necessarily kosher, a parent/guardian might start by objecting (GDPR Art 21) to further processing. This could be satisfied by powering off the Alexa devices in all rooms where the child is expected to be. The childcare should respond within one month. If no satisfactory response has been received, one option would be to lodge a complain with the supervisory authority, which would be the ICO in the UK. | In the united-states the heart of COPPA is 15 U.S. Code § 6502. This section requires (in sub-section (b) (1)) that: (A) ... the operator of any website or online service directed to children that collects personal information from children or the operator of a website or online service that has actual knowledge that it is collecting personal information from a child (defined as a person under age 13)— (i) to provide notice on the website of what information is collected from children by the operator, how the operator uses such information, and the operator’s disclosure practices for such information; and (ii) to obtain verifiable parental consent for the collection, use, or disclosure of personal information from children; It also requires (in subsection (b) (1) (B)) any such website operator to provide a description of personal information (PI) collected and to permit a child or parent to refuse permission for further use or collection of such PI. subsection (b) (1) (C) prohibits requiring more PI to be submitted than is "reasonably necessary" for a child to participate in a game or other activity, or be eligible for a prize. subsection (b) (1) (D) requires an operator: to establish and maintain reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children. Nothing in COPPA requires any content to be labeled as "for children" or as "not for children". Marking some content, or even an entire site, as "not for children" is evidence that the site is not "targeted at children" and so may avoid the operator being required to comply with 15 USC § 6502. In addition, other US laws, not part of COPPA, prohibit knowingly furnishing to a minor sexually explicit or otherwise "inappropriate" content, even when this is not legally obscene and would be protected when furnished to an adult. Marking content as "not for children" and attempting to verify age might help avoid application of such laws. The Wikipedia article about COPPA says: In 2019, the Government of the State of New York sued YouTube for violating COPPA by illegally retaining information related to children under 13 years of age. YouTube responded by dividing its content strictly into "for kids" and "not for kids". This has met with extremely harsh criticism from the YouTube community, especially from gamers, with many alleging that the FTC of the United States intends to fine content creators $42,530 for "each mislabeled video", possibly putting all users at risk. However, some have expressed skepticism over this, feeling that the fines may actually be in reference to civil penalties, possibly intended for the site's operators and/or warranted by more serious of COPPA violations or specific cases of "mislabeling videos." (citations omitted) This WGN news story "All You Need To Know About COPPA On Youtube" includes a link to an interview with Peder Magee, a Senior Attorney of the FTC’s Bureau of Consumer Protection. Magee says in the interview that recent actions under the law were for failing to properly handle PI collected from children. At time 5:02 Magee says "...and if you are collecting personal information [from children] you may have to comply with the law". COPPA does not make any content "illegal". What it prohibits is collecting excessive PI from children, not obtaining consent for collecting PI in some cases, or refusing to delete such PI on request. If a site does not collect any PI from users, 15 USC § 6502 simply does not apply to that site. Website operators may choose to restrict the access of children to avoid possible applicability of 15 USC § 6502 and its administrative requirements. They have the option of providing access but complying in regard to any PI collected. Note that COPPA is, in theory, applicable to non-US sites that are targeted at US users or collect PI from US users. However, according to the Wikipedia article: in practice, the FTC has never (as of 2015) actually issued any enforcement action against foreign companies, and attempts to do so may be frustrated by the lack of jurisdiction. Obviously, laws in countries other than the US are likely to be different. | If the app (and the service accessed from the app) truly doesn't have any EULA, ToS, or license agreement, to include restrictions on reverse engineering, you can probably create an alternate front end, so long as you aren't using their logos, etc. However, their data may be a different beast, depending on the nature of it. For example, extracting data from Twitter would potentially violate Twitter's license on the original text copyright held by the authors in question. Wikipedia explicitly includes redistribution in their license agreement with authors/content creators. If all you are extracting and storing is the temperature at a particular weather station, you might have less of a concern. Anything beyond merely factual runs the risk of a copyright infringement as you store the data in your own database. | As is often the case with the recording statutes, the meaning of the law is refined by case law. Specifically, the consent requirement holds when the parties have a reasonable expectation of privacy. The statutory language limits the restriction to "private communication": therefore, a person does not gain veto power over a public recording session simply by walking into the arena. Consent is implied when the fact of recording is self evident (you can see the operating recording device): by continuing to speak knowing that your speech is being recorded is implicit consent. Also, consent is only required for participants in the communication, and a person who happens to wander into the scene is not a participant in that communication. You may not want to test the edges of the law, in case a person wanders into the scene oblivious to their surroundings and talking on their cell phone. There might be a scenario where you're recording yourself but they are unaware of that fact, and they are having another private communication. The law does not prohibit accidentally overhearing someone else's private communication, it prohibits recording it. An unavoidable sign may aid you in your quest to not get sued. | Question #1: is this even possible? Is there some sort of central database which contains details of all recent court cases involving custody of children in New York City? Yes, it is possible. The court clerk for each respective court in the State of New York maintains a list of every case pending that court that goes back many years in electronic form, and there is some minimal classification by case type although the classifications used might not precisely match what you are looking for - it might be necessary to include more than one kind of case and some classification categories might be over broad for your purposes. There are probably at least three courts that could have jurisdiction over this kind of case in New York City. The Supreme Court (i.e. the trial court of general jurisdiction) which has jurisdiction over custody cases that are incident to a divorce or legal separation and in certain other cases, for example, criminal felony child abuse and neglect cases take place in the Supreme Court; the Family Court, a court of limited jurisdiction which lacks jurisdiction over divorces and legal separations but often handles custody matters involving unmarried couples, custody determinations incident to allegations of child abuse or neglect, and post-decree child custody matters; and the Surrogate's Court, which handles custody determinations incident to deaths and incident to some incapacity determinations (as guardianships of minors) and if I recall correctly, incident to adoptions. It also isn't inconceivable that a de facto custody decision could also be made in another court incident to issuance of a protective order or criminal case. It is also quite possible that there may be multiple related cases in the same or separate court. For example, there might be a child abuse and neglect case terminating person B's parental rights in family court, and then a guardianship of a minor case appointing the adult child as guardian of the minor child in Surrogate's Court. It is quite possible that more than one database (or portion of a centralized database) would have to be reviewed, rather than a single database. When I practiced law actively in New York there was not a single database, but that was more than 20 years ago and given the explosive improvement in information technology that has taken place since then, it would not surprise me at all if some or all of the relevant databases have since been consolidated. They do not know person B's name or other identity, but know they are somewhere in New York City, New York, USA. But they know the following about B: within last 4 years, B was a parent involved in a court case where their older adult child won custody of their younger underage child from them. Some information about the children is known but not precise identity (let's say birthday and first name for one of them is known; as well as ages). Notwithstanding my answer to question #1, it wouldn't be easy. While birthdays and ages would be present in documents filed in the various court cases, they would not be indexed centrally. The index of case names would contain the names of the parties to the case, the general case type, and the case number, and possibly the assigned judges and the attorneys who entered an appearance in the case. Difficulties Involved In Searching By First Name Unless the first name was very unique, locating it in a central index could be very difficult. Also, it isn't at all uncommon for the day to day name that someone uses to differ from the person's legal name used in the court case caption, or for the person's name to be misspelled due to lack of accurate information or clerical error, or for a nickname of someone to be used instead of their legal name. For example, suppose that the person you are searching for has the legal name: Jonathan Ralph Lee. This could easily have an indexed first name of Jonathan, Jonathon, Johnathan, Johnathon, Jon, John, Ralph or some totally unrelated nickname in the central index. I know someone, for example, whose legal name is "Claire" who uses the name "Denny" which has no source in any part of her legal name, in all circumstances except legal documents, because at one point in her life that is what other people and she started to call her (for reasons that are not entirely clear to me), and it stuck. A nickname totally unrelated to a legal name is particularly common among people who immigrate to the U.S. or have parents who do, whose legal name is not commonly used in the U.S. For example, I know someone born in Korea whose true name is Hei-Hyun who used the name June, which she used in English as a second language classes when she was first learning English abroad, in almost all circumstances except in legal documents. In those cases, either the legal name or the nickname could easily appear in court documents. Everyday use of a middle name rather than a true first name is particularly common when father and son have the same true names apart from Senior and Junior or the third, for example, and when the first name is less common or otherwise embarrassing or overlaps with a classmate. I've also known people who used a first name growing up and then later transitioned to a middle name at some point (often upon moving to a new school or new place) and people who have transitioned in the opposite direction under similar circumstances, in each case in connection with a desire of the person involved to "reinvent" themselves. Other Information Which Would Greatly Help In Searching It would be extremely helpful (cutting the number of cases involved dramatically) to know which borough within New York City this took place in, because at the level of court administration, each borough of New York City is a separate county with a separate set of court clerks and all case indexes would reveal the borough in which the case was brought. The more you can narrow the time period, the easier it is for you to conduct the search. If you knew the name of the school that the younger child who was subject to the custody order attended at any time and the younger child's first name and ethnicity, attempting to locate and review school yearbooks and newsletters in the relevant time period (often children are identified by name in newsletters listing children who won academic or attendance or sports awards, or who participated in special field trips, for example) would provide a much more solid basis for a further search of records related to person B, because this would give you a full name for the child and would also establish the most likely borough in which the records would be located. Often a list of parent names at the school can be found in PTA newsletters or lists in school newsletters of parent volunteers who are being thanked. If you knew the address of person B or the younger child or the older child at some point, this would be very helpful. If they lived in a home that they owned you could search property records to find a name of person B or someone related to person B. If they rented, you would still narrow down the likely school that the younger child attended, the likely courts in which the action could have taken place, and you could go in person to the neighborhood and ask former neighbors. Either a first name or a surname for person B, the parent, would also be extremely helpful, although a full name and borough of residence for person B would be much better and might limit the search, if you were authorized to make it, to just a handful of names. Knowing person B's gender would also help. If person B is the father, usually the child's surname will be the same as the father, while if person B was the mother and not married to the father, this would be much less common. The more you know about the precise nature of the proceeding, the better. It would be very unusual for an adult child rather than a parent to be awarded custody of a minor child outside of an abuse and neglect proceeding terminating person B's parental rights, or an adoption proceeding in which person B voluntarily relinquished his or her parental rights. So, the odds are good that you would want to search records in Family Court or Surrogate's Court, rather than in the Supreme Court which handles matrimonial actions. If person B were prosecuted criminally for child abuse or neglect, there is a very good chance that the person is incarcerated in a state prison at this time and so a search of prisoners with the right partial name who were incarcerated at about the right time and were of the right gender could be fruitful. This would be particularly helpful if person B is a woman because there are far fewer incarcerated women than there are men, and there are far few women's prisons than there are men's prisons. Knowing the name of the judge who handled the case would be extremely helpful and would greatly narrow the scope of the search. Also, if you identified the case with sufficient specificity in a request to the judge who handled the case to allow you to gain limited access to court records, it is quite likely that the judge would be able to identify the exact case involved with the help of court clerks from memory or partial memory of the case, making it much more likely that the judge would let you access the information that you needed. Media accounts of a case and appellate opinions arising from case (which are often publicly available in redacted form) are much more likely to identify the name of the judge than the name of the parties in a case involving a minor child. Knowing who represented person B as a lawyer, or in the alternative, knowing that person B was not represented by a lawyer, would help narrow the list considerably. If you knew who the lawyer was, calling the lawyer's office and asking in a manner that explained your need to know would probably be more likely to provide information that obtaining it directly from the court system. Knowing the name of the opposing counsel would be almost as helpful. If you new that person B acting pro se in the case, you could eliminate from the list all cases in which all parties were represented by a lawyer. This search could be made considerably more powerful if you knew the gender of person B as this would allow you to narrow the search to cases where someone of person B's gender was not represented by a lawyer. If the case was an abuse or neglect case, it would have been prosecuted in the name of the State or the People, so you would look for cases where the defendant was not represented by counsel without regard to the attorney for the plaintiff. Question #2: If this is theoretically possible, who would have access/privilege to do this? Any random person? A registered lawyer? Police? Court officer? Usually cases involving juveniles are closed to the general public, so to access them, you would need to be an "interested party", and neither a "random person" nor a lawyer admitted to the bar in New York State could do so without that connection. It might be possible to search case names that might contain the name of the child or the sibling without being allowed to access the contents of the file in some cases, I am not entirely sure on that point. If the case were incident to a case in which the child or the sibling was not a named party (e.g. the probate of a parent), this might not be sufficient to even identify the right case, however. A good summary regarding access to court records in New York State is available here. In some of the pertinent parts, it states: A number of statutes limit access to court records where the interest in confidentiality outweighs the public interest in disclosure: A. Family Court Records Access to court records in the Family Court is governed by Section 166 of the Family Court Act, which provides that the records of any proceeding in Family Court are not open to indiscriminate public inspection. In order to access a particular Family Court record, the requesting party must make an application to the Court and set forth the reasons for the request. It is solely within the discretion of the Court whether to permit the inspection of such records. Certain individuals, such as the parties and their representatives, are permitted access to Family Court records without application to the Court. 22 NYCRR205.5 Given that "B was a parent involved in a court case where their older adult child won custody of their younger underage child from them.", it is conceivable that one could articulate a reason for the need to do the search that a Family Court judge would authorize, but that would depend to a great extent on the precise nature of the reason for the search. It helps that the person you are actually searching for is an adult who would have been a named party in the case, and not the actual minor child. But, a Family Court judge would probably be pretty reluctant to authorize a search on behalf of someone who didn't even know the name of the person being searched for and instead only knew the first name and age of one of that person's children. In part, this is because it indicates that the "need" to locate person B is not very strong, and in part, this is because the search would be much more intrusive requiring review of actual court filings in many cases rather than merely reviewing the index of cases. It further states: B. Civil Actions Like criminal proceedings, civil actions are presumptively open pursuant to the guarantees under the First Amendment. Unlike criminal actions that present constitutional considerations for criminal defendants, in civil actions the First Amendment guarantees must be measured against the public interest in requiring disclosure. Family Court Proceeding The declaration in Section 4 of the Judiciary Law of a presumption of public access to court proceedings does not differentiate among the courts, and therefore applies to the Family Court, subject to any other statute that gives special treatment to Family Court proceedings. As such, there is also a presumption of openness to all Family Court proceedings, and Section 205.4 of the Uniform Rules [22 NYCRR] expressly provides that the Family Court is open to the public, including the media. However the presumption can be overcome on a case-by-case basis by an overriding interest that closure is essential to preserve higher values. See e.g., Globe Newspaper Co. v. Superior Court, 457 US. 596, 608; Matter of Ruben R., 219 A.D.2d 117 (1st Dept.),lv. to app. denied 88 N.Y.2d 806 (1996) (holding potential trauma to mental and physical well-being of children required closure of child protective proceeding to public and press); Matter of Katherine B., 189 A.D.2d 450 (2d Dept. 1993) (holding public properly excluded from child protective proceeding where compelling testimony established that child would be adversely affected). Section 205.4 (b) of the Uniform Rules [22 NYCRR] provides specific factors that a judge may consider in determining whether to close the courtroom or to exclude specific individuals, such as preserving courtroom decorum, avoiding a disruption in the proceedings, and serving the orderly administration of justice, including privacy interests of individuals before the court and the need to protect litigants from harm. Matrimonial Proceedings Domestic Relations Law § 235(2) grants the court the discretion to exclude the public if "the public interest requires that the examinations of the witnesses should not be public." Because matrimonial proceedings include matters concerning child custody, visitation and maintenance, aside from potential embarrassment to the litigants in a public proceeding, the public interest standard may protect minors from public testimony. See CPLR 4019; Matter of Lincoln v, Lincoln, 24 N.Y.2d 270 (1969) (trial court had discretion to interview the child in a custody proceeding in private). Adoption Proceedings Given the nature of adoption proceedings, the proceedings are confidential and held in closed courts, and the records pertaining to adoptions are sealed pursuant to Domestic Relations Law § 114. See Matter of Walker, 64 N.Y.2d 354 (1985) (setting forth the considerations for deeming adoption records confidential). Mental Competency Proceedings The media has a qualified right of access to competency hearings, whether held pursuant to the Mental Hygiene Law or the Criminal Procedure Law. See Matter of New York News v, Ventura, 67 N.Y.2d [sic] C. Matrimonial Actions Section 235 of the Domestic Relations Law provides that neither an officer of the court with whom the proceedings in a matrimonial action or a written agreement of separation is filed or an action or proceeding for custody, visitation or maintenance of a child are filed, or before whom testimony is taken, or his clerk, either before or after termination of the suit shall not permit a copy of any pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or examination to be taken by any person other than a party, or the attorney or counsel of a party, except by order of the court. D, Confidential Records Records contained in a court file that are deemed confidential may not be disclosed absent a court order including the following: . . . • Court records in sex offense cases that might identify the victim. See Civil Rights Law § 50-b. • Mental health records, including records of commitment, retention and discharge proceedings of the mentally ill and mentally retarded (see Articles 9 and 15 of the Mental Hygiene Law; CPL 330.20) and clinical records submitted in connection with the proceedings (see Mental Hygiene Law § 33.13[c]). . . . • Records of adoption proceedings. See Judiciary Law § 90.10. • Other records or documents that have been sealed or designated confidential by the court. I am not completely clear on the extent to which the case name itself is suppressed, as opposed to merely the contents of the case file in some of these situations, but where the name of a child is suppressed due to confidentiality this often extends to the name used in the caption and indexing of a court case that is available to lawyers not involved in the case and the general public. A court official would have authority to look at the information, but probably wouldn't be allowed to disclose it to you in any situation where you or a random lawyer was not allowed to do so, for the reasons set forth above. I can imagine circumstances in which the police or the prosecutor's office would be allowed to review sealed juvenile custody case records in furtherance of a criminal prosecution or potential criminal prosecution, but I couldn't tell you how they would go about getting that authorization as I have never practiced criminal law and am not familiar with that level of procedural detail in New York State. But, it is hard to imagine law enforcement coming to your aid in the circumstances you describe, although without knowing the reason that you want to locate person B, it is hard to know for sure. | Yes, it's legal. To be illegal, the photographs would have to be obscene or pornographic. Nude people, ordinarily photographed, doing non-sexual, non-excretory things are neither. However, I would strongly advise caution, particularly if you plan to display or share these photographs. There are definitely cases of people who have been charged with sexual exploitation of a minor for sharing nude photographs of their children. | A voicemail greeting, like any original sequence of words, will be protected by copyright. Making and publishing a copy without permission would be an infringement of that copyright, and could subject the person who does it to a civil lawsuit. However, such a greeting normally has no commercial value, and it is hard to see how any actual damages could be assessed. In the US, statutory damages could apply, but since the greeting is unlikely to carry a copyright notice, the person sued might claim to be an "innocent infringer", which could significantly reduce the damages assessed. (However if such a person had read this answer, and that were brought out in court, s/he would be on notice of the copyright protection, and could not claim to be "innocent".) Moreover, the defendant could still raise the defense of fair-use (In the US). The would be no harm to the market for the work, since there is no market, which would favor fair use. The whole of the work would probably be used, which would tend against fair use. A greeting is somewhat creative, more so than a work of non-fiction, although usually less so than actual fiction or verse, which leans slightly against fair use. It is hard to say if this kind of reuse would be considered transformative, it would probably depend on what sort of commentary, if any, was provided. In all, a fair use defense seems pretty close to a coin flip, but not as predictable. In any case, judges often do not favor suits over technical infringements of works with no commercial value where no meaningful damage has occurred, and often award minimal damages within the statutory range, which is wide. Given all that, the risk of suit seems low. The question mentions "school district administrators" If the person doing this is a student, this might be looked on negatively by the school district, which might be able to frame it as against some district policy or other. Consider possible repercussions carefully. As always on Law.SE, this is not legal advice. Before acting you may wish to consult an actual lawyer. | Various elements could be legal, or not. For example, it is legal to require students to do things in order to pass a class. It is legal to require a student to write a program for a course (entirely, or in part). It is legal for a teacher to give a "group grade". It is not clear whether it is legal to require the student to assign copyright or license to the teacher / school – it may be legal to require a student to pay for their class, and copyright transfer might be valuable consideration for such a contract (assuming that there is a contractual relation at all as opposed to a statutory mandate – e.g. "high school"). If this is a public school, you can't make students pay for a mandatory class, therefore you cannot require assignment of copyright. It is very probably illegal for the student to access the educational records of other students, but the app could be developed with dummy data. |
Why can't newspapers be held liable for publishing information given to them in violation of an NDA? In the United States, information that is protected by non-disclosure agreements (NDAs) are more and more frequently appearing in newspapers and news publications. Why can't the news publication be held liable for the disclosure of that information? | Depends on the specific terms in the NDA, but the short answer is that the News Services didn't sign the NDA, and have no contractual obligation to keep mum. Most NDA's I've signed or had others sign are very clear about the personal liability, and the conditions under which the proprietary intellectual property can be discussed. In the case of leaks, the injured party would have to identify the leaker, and that person would be liable. (Still a difficult proposition b/c most reporters won't give up sources unless you drag them in front of a Grand Jury, and often not even then.) | It's not illegal to ask. Whether they can give it to you, and under what circumstances, is another, much more complicated matter. For instance, if the database contains health information covered by HIPAA in the United States, or personal information covered by laws like GDPR or CCPA, the customer's ability to share the database may be restricted, either requiring additional confidentiality obligations/use restrictions, or preventing sharing entirely. | You can write anything you want (basic First Amendment protections): the question is whether one would be liable for damage that arises from what you're written, or whether you can distribute what you've written. Distribution may be restricted, thanks to the Commerce Clause (hence FDA regulations, which figure prominently in the analysis). Most software writers are not medical practitioners, and vice versa, and what the software writer does is implement something described by a competent medical practitioner. It is logically possible that a med. practitioner might also try to write software (no problem) and distribute it (possibly a problem); or, a software writer might read up on something on Wikipedia and try to implement it (again, no problem) or distribute it (possible problem). Damages can be sorted into two categories, implementation errors and scientific errors, and having ruled out deliberate sabotage, we are left with negligence. If the software writer failed to use suitable care in writing code that sums a set of numbers, the software writer has been negligent. If the person purporting to have the qualified scientific knowledge mis-states the formula, that person has been negligent. It is possible for many parties to be negligent (the programmer failed to be diligent in understanding the software requirements; the medical professional failed to adequately explain what was required of the program). The FDA does regulate medical devices, and "device" is construed pretty broadly (condoms are non-exempt class 2 medical devices). There is FDA guidance on medical software which makes it clear that the device manufacturer shoulders the regulatory burden. Anytime you manufacture a tangible thing (which is within the scope of FDA regulation for medical devices), you have to have the thing approved. Many (most?) medical devices implement software, and are thus within the scope of FDA scrutiny. It is not illegal to write software that ends up being implemented in an unapproved medical device, but the unapproved medical device itself is illegal. It is reasonably likely that purported medical software (not a gadget with software build in) would be held to be a non-exempt device. To know if something is exempt, you would look at the exemptions list, and determine that your program (or thing) is not on or implied by anything on that list. The visual acuity eye chart is a class 1 exempt item, as is the manual toothbrush. There is no way to specifically look for things that are only software, or that contain software, so the search through the list would have to be guided by knowledge of the subject area. Canada is helpful in explaining when software is a regulated medical device. This is non-probative w.r.t. US law but gives you an idea what is likely to be considered a "device". Under Canadian law, the software would be clearly a regulated medical device. The FDA has a power-point that attempts to say something about the matter which warns you that you are on your own and "You will need to go back to study and use the source regulatory documents" to make the determination. Eventually, slide 13, they hint that if you intend the software to be used in diagnosis, prevention, or treatment, then it is a device (so, yes, the aforementioned software would be a device, and probably not exempt from regulations). General purpose software (word processors, web browsers, communications software, etc.) are not indented to be used for a regulated purpose, although they can be so used, and thus they are probably not subject to FDA regulation. There is a murky relationship between regulatory approval and liability. Being approved by the government does not convey immunity to negligence suits (see Wyeth v. Levine), but being approved can have weight in determining whether a party was negligent, since regulatory scrutiny ostensibly filters out errors that could have been caught. Federal approval does not preempt state tort law, as the court ruled. Regulations pertaining to medical devices hold for anything that qualifies as a device, and is not defined (negatively) in terms of disclaimers. If you sell a medical device but label it saying "this is not a medical device, it is not created by a competent medical practitioner", that doesn't make it not a medical device. Unfortunately, what counts as a regulated device is based on intended use, and there is an obvious connection between disclaimers and intentions. Taking MS Word as an example, MS does not as far as I know say that "Word is not intended to be used as a medical device". It can certainly be used to diagnose, teat, and prevent medical conditions, but so too can a screw driver or pretty much anything else. The number of non-medical uses vastly outweigh the medical uses, so it would be deemed not to be a regulated device. A program which prescribed a set of prayers to be uttered in case of illness would be subject to First Amendment override of any FDA regulations. Quack medical devices are prohibited (that's why there is regulation of devices in the first place), but discerning the fine line between permitted actions based on nutty beliefs and forbidden actions is not easy. The FDA also has guidance on the distinction between "Complementary and Alternative Medicine", which does not clearly state that, for example, a software reading of your cakra-energies based on a computer program's questions is not a medical device. They do say of mind-body medicine (mentioning yoga, biofeedback and tai chi as examples) that "CAM practices in this domain would not be subject to our jurisdiction under the Act or the PHS Act", but then say "any equipment or other products used as part of the practice of mind-body medicine may be subject to FDA regulation, depending on the nature of the product and its intended use" (hence a yoga-enabling program may be subject to regulation). | If there is a divorce case and through the process of declaring a parties financial position it comes out that one of the parties has dodged a bit of tax can that evidence be held against them? Generally speaking yes, unless the relevant prosecutor's office provides a grant of immunity from prosecution for the matters disclosed, which basically never happens in a divorce case or ordinary civil case. This is why it is sometimes necessary to invoke the 5th Amendment in the context of a civil case. Does a judge have the duty to report any law-breaking that arises in civil cases No. It isn't improper for a judge to report law-breaking that is observed in the course of litigation before that judge, but the judge has no duty to do so (absent some very specialized exceptions like treason), and, in practice, rarely does report law-breaking not directly before the judge to evaluate. In contrast, in criminal cases, during the pre-trial phase of a case (and especially in the pre-arrest phase of a case), a judge often has a duty to keep knowledge of crimes obtained in that way secret until it is disclosed by the prosecution (unless the prosecution improperly fails to disclose something that it is required to disclose). This is so that criminals aren't "tipped off" by a judge of an impending arrest. A judge in Colorado was recently prosecuted and removed from the bench for a disclosure of that kind. or is a civil case confidential between the two parties? A judge can seal a civil case, or limit public access to certain documents, but that is the exception and not the norm and has to overcome constitutional protections of the public's right to public trials that media organizations frequently enforce successfully. Confidentiality between the parties can only be imposed for "good cause." Hiding the fact that you cheated on your taxes from tax collection agencies does not constitute good cause. Footnote Most U.S. jurisdictions have an ethical rule for lawyers that prohibits them from threatening to take administrative or criminal actions to gain advantage in a civil case, although the exact details vary quite a bit from jurisdiction to jurisdiction. This does not apply to clients of lawyers acting unilaterally and without guidance from their lawyers. | If a newspaper publishes an article that is actually defamatory (i.e. publishes false statements that cause you quantifiable harm), and you successfully sue the publisher, you might get a court order requiring them to retract the statements or remove them from their web page. An archive like newspapers.com isn't making false statements, it is making true statements about what the Poughkeepsie Journal published. At any rate, you name is not defamatory, it is (or was) a fact. | The burden of proof is always on the plaintiff (except for counterclaims brought by the defendant against the plaintiff). In your example, the businessman has to prove that he did not rape her. | You have several issues. Breach of Contract When you sign up with each of those services you are entering a legally binding contract and must comply with the terms of that contract. For example, this is taken from Facebook's terms: Here are some commitments you make to us relating to registering and maintaining the security of your account: You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission. You will not create more than one personal account. I haven't checked but its a fair bet that the other services have similar terms. Unless you have permission, what you are doing breaches these terms of service. If what you do causes damage to Facebook et al then they can sue you and your employer for damages. Even if it doesn't they can probably bar you from having an account for as long as they like. Improper use of images This is jurisdictional but it is generally required to have the permission of the subject of a photograph where that photograph is used for commercial gain. There are exceptions where the person is not the primary subject (e.g. crowd shots, or images primarily of something else where the person happens to be in the shot) but the type of photos you would use for these services are not going to be exempt. The sanctions for breaching this will be dependent on jurisdiction. Breach of Copyright Somebody owns the copyright in those photographs. If you do not have a licence to use them in the way you propose then you are breaching their copyright. The copyright holder can sue for damages (if any) and any profits you make. Vicarious Liability An employer is strictly liable for the actions of their employees, jointly and severally with the employee. That means a plaintiff can go after either the employer, the employee or both. An employee may have some statutory or contractual indemnity but this is by no means common. | The additional protections for social-media platforms comes from Section 230 of the Communications Decency Act, not from the First Amendment. Section 230 basically provides immunity from defamation and other kinds of liability. Generally speaking, it applies only to platforms, i.e., companies providing a service for other people to create and post content. This goes beyond social-media companies to include message boards, blogging platforms, dating websites, etc. Newspapers generally do not enjoy this protection because the information that they post on their websites is information that they have generated themselves. |
Is there any country where hacking back is legal? Building on this unanswered question: Under what circumstances could laying hacker "traps" cause civil or criminal liability for non-law enforcement civilians? I was wondering if there was any place where hacking back is legal, and if would be possible for companies to base their operations there, so they have a legal basis to hack back at their attackers. As far as I can tell, it is illegal in most places, but I'd like to make sure there isn't a country that permits it. | This report summarizes the state of cyber-crime law in Africa, noting that 60% of African nations have no laws against hacking (much less laws against "hacking back"). It is 5 years old so there may be some changes. | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. | "Revenge" is not a legal concept. If you injure someone other than in self defence or for another legal reason than you are committing assault. Hence dangerous booby traps for trespassers are illegal, so anything that might cause injury, however minor, is definitely out. That includes itching powder. However I would make an analogy with anti-climb paint. This allows you to use a paint that damages clothing provided you put up warning signs. So if you were to leave a parcel coated with anti-climb paint or containing a bag of paint or glitter rigged to spill it over the person opening it then that would be legal as long as there was a warning that tampering may cause property damage. (Note "spill", not "squirt" or "splash": anything ejecting paint or glitter under pressure might get it in someone's eyes, causing injury). So your friend could put a notice up saying that unauthorised tampering with parcels could cause damage to property and then put out parcels that might do exactly that. Your friend could also put a GPS tracker in a parcel to try to find out where they are going. Update Here is someone who did this. The BBC story does not mention any legal issues for him. A former Nasa [sic] engineer spent six months building a glitter bomb trap to trick thieves after some parcels were stolen from his doorstep. The device, hidden in an Apple Homepod box, used four smartphones, a circuit board and 1lb (453g) of glitter. Mark Rober, who is now a Youtuber, caught the original thieves on his home security camera. [...] The former Nasa engineer said: "If anyone was going to make a revenge bait package and over-engineer the crap out of it, it was going to be me." | 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. | What you're asking about is extraterritorial jurisdiction, and it will depend on the country and crime(s) involved. As an example, under Australian law, it is a crime to engage in sexual activities with minors barring specific exemptions, which are not relevant to this example. There are countries where the age of majority is less than that in Australia. If you were to travel to this country, you are not necessarily committing a crime there. However, Australia's sex tourism laws make it a crime to do this anywhere in the world. This is enacted (I believe) under the foreign affairs power of the Commonwealth Government. It will largely depend on the legal system of your country, as to whether laws have extraterritorial effect. In general, however, laws do not have extraterritorial effect unless explicitly stated. | None, if the intention is merely trespassing, unlike burglary which requires intent to steal, commit criminal damage, or inflict grevious bodily harm or if the building is a protected site - neither of which isn't evident from the question. Note, for both offences, the actus reus is entry - there is no requirement for any form of "breaking" Further to ohwilleke's comment, unless the lock is damaged or destroyed etc, then there is no offence of criminal damage | No If you break the law you are legally responsible. Can you make it more difficult for law enforcement to find and prosecute you? Of course, that's why bank robbers wear masks. | As stated in the answer to What is considered "public" in the context of taking videos or audio recordings?; if either of the participants is in Australia than unless all parties have given consent then the recording is illegal. Notwithstanding its legality, property in the recording vests in the person who made it. There is no law against him keeping it. There is no law against him publishing it unless the material contained is offensive, hate speech or defamatory (see Customer feedback gathering in Australia). |
Friend wants to put me on his insurance, how can this bite me in the ass if we get into an accident? UNITED STATES, WASHINGTON STATE, PIERCE COUNTY, TACOMA CITY I have a house mate who is disabled due to a stroke and cannot drive his car. He suggested to me that I can drive his car and in return i can use the car to get groceries. He said that he wants to put me on his insurance and that he would need my full name and a copy of my drivers license. I told him I would think about it. Could this cause me any problems if things go wrong? For instance if we get into an accident? My license is fine, it's active, current, and not suspended or revoked. I just want to ask if it is legal for me to use his car with his permission if I were to use it to get groceries when he is not in the car with me. | You always run some legal risk when you drive. As long as you are insured (you have a card in your hand) and you have permission to drive the car, it does not matter who owns the car. There is a difference between the legal minimum insurance coverage and actually adequate coverage, and since you are not getting separate insurance where control the insurance levels, you theoretically run some liability risk if you have an accident and the coverage is less than the damages (insurance doesn't mean that the other guy can't take you to court for the rest of the amount). There is also a risk that the housemate will do something crazy like cancel the insurance coverage for you, or report the car stolen, so you have to decide how worried you are about that possibility. | Legal Services Society is a non-profit organization created by the BC Legislative Assembly through this act, created in order to serve the legal needs of certain classes of society, defined vaguely with reference to "a reasonable person of modest means". Accordingly, they have rules regarding who they can and cannot serve. and they are constrained financially. With vast demands on their resources and little by way of resources, prudent triage is called for. That is, when you show up, you shouldn't expect to talk to a senior attorney (or an attorney). From what I can determine, you cannot expect to get your problem solved right away. It is also not clear that your problem is within the scope of what they do (criminal, incarceration, serious family matters, immigration). "Giving legal advice" is something that only a few people are legally allowed to do – lawyers, who have you as their client. If the person were an attorney, they still couldn't give you legal advice until the appropriate relationship is created (and they have the relevant facts). The person you met with may be a paralegal or a law student. Under the law (sect. 8 of the act), you cannot sue them for damages because of their actions, except if carried out in bad faith. The waiver might be a bit redundant, but it is a wise idea to tell people that you can't sue them. If you want to know what you can expect from the lawyer, this publication will be helpful, though it is generic and not specific as to your particular issue. | What "reasonable accommodation" were you requesting? That they lower the bar of determining your ability to pay your bills on time? I don't think that will qualify. A business setting a minimum bar for financial viability isn't a burden tied to a handicap. It's one thing to request a ramp, contracts in braille, etc., but it's another thing to request that they accept a highly-probable financial risk. What would you expect of them the next time "life" got in the way and you couldn't pay your rent? Another accommodation? I think what they were saying is that since you didn't pass the financial background check, and as such were not accepted as a resident, you aren't in a position to make an accommodation request. | You can give your friend limited power of attorney in respect to selling your car, if you trust your friend enough with managing this transaction. Basically this is just a legal form you sign telling anybody who questions that you give your friend the legal right to stand in your place (in legal matters) and act as if they were you. The limited part is important as you don't want to give unlimited power of attorney (not sure you even can without more involved work), but you need to spell out exactly what your friend can do, like sign your title, sign and deliver a bill of sale, and complete a transaction in your name. Your friend would be signing their name to the title and submitting it with the power of attorney paperwork. In California, the DMV has a specific form for exactly this. You should print out, sign, and mail that form to your friend. | In Spain, most traffic offenses are usually considered administrative sanctions and involve just a relatively small fine, and perhaps losing some points in your licence. In those cases, if the driver if the vehicle cannot be established (your example, or a far regular one of a parking violation in which the officer did not see who did park it and will not wait by the side of the parker until the driver appears), the fine just goes to the registered owner. When the fine is reported to the registered owner of the vehicle, he can report who was the actual driver who broke the law at the time of the offense. I do not know what would happen if the person named does not recognize his responsability, but my guess is that the owner has to pay the fine (HINT: do not lend your car to someone who cannot be trusted). If the infraction is so excessive that it becomes a matter of penal law then there must be a trial and then the accused must be established without reasonable doubt, so in that case such a stunt maybe could work. | You have the right to notify the owner of the car of their vehicular trespass and the consequences of that. You do not have the right to damage the car in giving said notice. You have the right to offer to clean the gum off whatever part of the car you stuck the notice to. If you succeed in cleaning it,the other party will not have a legal cause of action, in all likelihood, since there is no damage (though with a bit of imagination they might come up with some 'missed business opportunity' loss). The court would probably find your choice of sticker to be negligent (put the notice under the wipers? use painter's tape -get some if you don't have any). The rationale 'we had no other choice' holds no water: there are alternatives. 'Criminal Damages' is a concept in UK law, but it relates to willful damage such as vandalism, not accidents. It would be an issue if you had planned to cause damage, but that seems not to be the case here. | According to Virginia law, Every person convicted of reckless driving under the provisions of this article is guilty of a Class 1 misdemeanor. That speed easily qualifies as reckless driving: A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit or (ii) in excess of eighty miles per hour regardless of the applicable maximum speed limit. The punishment for a class 1 misdemeanor is "confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both." But wait! An airplane is heavy, so this may also apply: If it is found by the judge of a court of proper jurisdiction that the violation of any provision of this title (i) was a serious traffic violation as defined in § 46.2-341.20 and (ii) that such violation was committed while operating a vehicle or combination of vehicles used to transport property that either: (a) has a gross vehicle weight rating of 26,001 or more pounds or (b) has a gross combination weight rating of 26,001 or more pounds inclusive of a towed vehicle with a gross vehicle weight rating of more than 10,000 pounds, the judge may assess, in addition to any other penalty assessed, a further monetary penalty not exceeding $500. By the way, I couldn't find a general reckless endangerment statute (unrelated to specific objects like firearms or specific results like injury or death) in Virginia law. The closest thing I could find was disorderly conduct, which is also a class 1 misdemeanor. It's possible I just don't know where to look. | Using two states as examples: In California, emergency vehicle operators are exempt from pretty much the entirety of the rules of the road (VC 21055). They can pass you on the right if they want to. Department policy might say no, but that depends on department policy and the details of their emergency vehicle operation course. However, California law requires all drivers to pull to the right when an emergency vehicle approaches (VC 21806). Even though an ambulance driver legally could pass you on the right, you are required to pull right. According to the BLM's emergency response policy for fire personnel in California, this means passing on the right is heavily disfavored: the emergency vehicle operator doesn't know that the driver (who is clearly not paying much attention) won't suddenly notice them and comply with the vehicle code, cutting them off or running into them. Other policies/things which seem to reflect policies say similar things, and all make it clear that operators need to be careful that the car they're passing won't drive into them. In Maryland, the law is a bit different. Section 21-405 of the Maryland Code obligates drivers to move to the edge of the roadway. This means either edge, so on a divided highway you might pull left. On a non-divided road, you obviously pull right. In this case, the vehicle may end up passing you on the right, but again: they are going to be careful about it, and would rather you get out of their way so they don't have to worry that you'll suddenly see them and drive into them. |
Must I follow "Compliment Policies" if these are not in the contract? I am working for a company in the UK where I have undergone courses to help me improve my working skills. It is written in the "Compliment Policies" on the companies website that if I leave the job less than a year after finishing one of these courses that I must pay for the total cost of the course (around a month's salary). But in my contract nothing has been mentioned regarding "Compliment Policies". Must I obey these policies, or because they are not stated in the contract I am allowed to leave the company without paying such cost? I am not a law student or a lawyer, but I know of no other place where to ask this question. | if you were made aware in advance and had the option of not taking the course, yes This is a collateral contract - a contract related to but functionally independent of your employment contract. | This should probably be handled under TUPE — The Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended by The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014. Those regulations apply to "a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity" Broadly, there must be some consultation but you cannot be forced to change the terms of your contract to your material detriment (for example, the date of the month you are paid might change, but your work and salary would not). This consultation should establish that there is no material detriment (carry on reading here). Regulation 13 provides (2) Long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees, the employer shall inform those representatives of— (a) the fact that the transfer is to take place, the date or proposed date of the transfer and the reasons for it; (b) the legal, economic and social implications of the transfer for any affected employees; (c) the measures which he envisages he will, in connection with the transfer, take in relation to any affected employees or, if he envisages that no measures will be so taken, that fact; and (d) if the employer is the transferor, the measures, in connection with the transfer, which he envisages the transferee will take in relation to any affected employees who will become employees of the transferee after the transfer by virtue of regulation 4 or, if he envisages that no measures will be so taken, that fact. (6) An employer of an affected employee who envisages that he will take measures in relation to an affected employee, in connection with the relevant transfer, shall consult the appropriate representatives of that employee with a view to seeking their agreement to the intended measures. If you refuse to accept the transfer you are deemed to have resigned (Regulation 4(8)), unless the "transfer involves or would involve a substantial change in working conditions to [your] material detriment", where you can be deemed to have been dismissed (Regulation 4(9)), and potentially unfairly dismissed. That would be for an Employment Tribunal to decide. But you cannot exit the successor company except in accord with your contract, including any notice period. The 2014 amended Regulations deal principally with the issue of redundancy after transfer, which is specifically allowed for "economic, technical or organisational reasons", such as the new company deciding to rationalise operations in a location 300 miles away from your normal base. In those circumstances you can be made redundant if you don't move with your job or accept redeployment. [This is what happened to me.] Note that every TUPE transfer is unique, and while yours will be subject to the Regulations, the wrinkles in your particular case (a) aren't present in your question and (b) will best be answered by a specialist employment lawyer, particularly as to whether any necessary changes to your contract are to your "material detriment". | It's a contract violation if you're under the EULA. It may be a contract of adhesion, but such "clickwrap" contracts been found to be acceptable and enforceable in software EULAs out of necessity. However, there may be some limits. If you're not under the EULA, as you argue, then you lack a license to use the software at all and it's an outright copyright violation and/or a theft or misappropriation of the software. Whether or not you can be sued depends in part on what you do with it — if you don't release the material or otherwise cause damages then there's not much to sue for... Added for clarification: to answer the framing question, supposing neither contract or copyright applied, one could be sued in tort or in equity (i.e. for unjust enrichment). | They can ask, but there is nothing in law - that I can find - which obligates an answer. (There may be some exceptions that require a previous employer to provide a reference which might include this detail, but that does not appear relevant here.) As an aside, there is an ongoing #EndSalaryHistory campaign by the Fawcett Society which is focused on equal pay and sexual equality in the workplace, and they are calling on employers to: stop asking salary history questions... | What does the contract say? When you signed on for these classes, you signed a contract. This will spell out each party’s rights and obligations. Since the rec centre drafted the contract it probably gives them the right to expel you and probably doesn’t require them to reimburse you if they do; but you would need to read it to be sure. | I infer from the use of the past tense "worked" that you no longer work for the company in question. Also, from the fact that you are wondering whether there might be negative consequences, I infer that you do not have permission to use the systems in question. The specific consequences will depend on where the company and its computers are located, as well as on the nature of the systems you log in to and on what you do with those systems, but it's certainly possible to receive a penalty of several years' imprisonment. The fact that you created the system in question makes no difference. | What legal options do I have here? It depends on how much you are owed. If it is less than $5000 (in a city court) you can sue them in small claims. If it is more than that, you'll have to sue them in a different court. Do I have a claim to salary if I quit? Yes, absolutely. You quitting does not relieve the business of its obligation to pay you for work you have already performed. In some states, they may also be required to pay you for accrued leave (sick/vacation time). You should not have to work for a company that does not pay you, we got rid of slavery a long time ago. I'm nearly positive I would not have a claim to the 100% discretionary bonus. Maybe, maybe not. This depends on your contract and what you've been told. If you were told (in writing) that you would be given $X amount for a bonus for work performed in 2018, the bonus may no longer be discretionary because the company obligated themselves to pay it via a promise. Bonuses may be harder to argue in court, but if you have sufficient documentation that you were promised this bonus then you may have a claim to it. If you do decide to go to court with this, gather up as much documentation as you can before quitting, print it out and save it to bring to court or to your lawyer. Make sure to get as much as possible, for example if it is an email, get the whole chain, as much of the headers as possible, etc. If you have voicemails, see if you can save them or record them for later. Do not wait too long, have a lawyer draft up a demand letter the moment you quit outlining exactly everything you are owed, including the bonus, vacation, sick days, etc. Deliver this via certified mail. Don't let them say "well we'll get you taken care of next week/month/pay day". There are statutes of limitations (I don't know what they are for NYC) but you should be making an effort to collect, not waiting on them. After you quit, they don't have an incentive to pay you anymore (even though they are legally obligated to). | http://www.thisismoney.co.uk/money/experts/article-1698485/Can-I-discuss-my-pay-with-colleagues.html In short, there are no laws prohibiting or rendering such contract clauses unenforceable, but an employer cannot rely on such a contractual clause to abrogate its obligations under the Equality Act 2010. |
Is it prohibited to mock the LGBT community in France? Recent question: Freedom of speech and blasphemy caused me to think about it and ask myself: is there any limits/prohibits for mocking in France? Is it legal to criticize the LGBT community? As we see, it is legal to mock religions, but what else? | Mockery is allowed; hate speech isn’t While freedom of speech is guaranteed under French law it does have limits. Since 2004, these limits have applied to gender and sexuality. Mockery is contemptuous or insulting speech; hate speech or vilification incites hatred, serious contempt or ridicule. The boundary between them must be established on a case-by-case basis including both content and context (“I’m going to get you” can be a serious threat but it can also be what a father says to his child when chasing them in the park) but in France, as in other liberal democracies, the benefit of the doubt goes to speech being considered lawful. | It is almost totally legal. Federal law prohibits discrimination on the basis of race, color, religion, national origin, sex, disability, and familial status, and Ohio law (ORC 4112) does extends the prohibition to ancestry and military status. So if the reason is "she's (not) a soldier", it's illegal, otherwise it is legal. | In April 2017, a US District court on Colorado ruled that a law prohibiting women from exposing their breasts in public was an unconstitutional discrimination against women. The law was ordinance 134 passed by Fort Collins, Colorado in May 2016. The group opposing it was led by the activist organization "Free the Nipple." This ruling is not binding in other states, however. See this Snopes report for more details. The case is being appealed to the Tenth Circuit. A similar ordinance has been taken to state court in New Hampshire on similar grounds as described in this AP story and this US News story A similar claim in Illinois in 2017 resulted in a law against 'public indecency" being upheld (in Tagami v. City of Chicago) at the Federal Appeals Court level, according to this Reason story A similar law in Ocean City, Maryland, was challenged in federal court in the summer oif 2018 according to this news story. in 1991 in United States v. Biocic the US Court of Appeals for the Fourth Circuit upheld a similar law against a similar challenge. This Munknee article lists states where a woman going topless is legal and illegal. According to a Time Article (which gives a similar list): The vast majority of states actually have laws on the books making clear that women can’t be arrested under state law solely for being topless in settings where it’s OK for men. But many local ordinances ban the practice anyway. In short, it is not yet fully settled if there is a US constitutional right for a woman to go topless, and state and local laws vary widely. Local laws do not always conform to the laws of the state, but would probably require a court challenge to enforce the state law. Laws in other countries will vary, but many places ban such exposure. | This seems to be a mix of question about law and a meta-question about this site, but I'll treat it as an on-topic question about law. The author of a question, or answer, owns the copyright to their contributions, and they can re-publish to their heart's content. Any user who posts here grants a license to SE and other users to use content posted here, so I don't have to ask you permission to quote you. As part of the permission granted by SE to use this website, you have agreed to "follow the rules" set by SE. There are many rules, some spelled out more clearly that others. For example, if you post a question, you indirectly agreed that your content can be upvoted or down-voted. Certain content can be "closed" and deleted, when the content is deemed to violate the rules in particular ways (is spam, porn, abuse, or judged to be poor-quality). Judgment (on different matters) can be rendered by community managers, moderators, or other users. The agreement is here, see especially here. If we take the post that you linked to, it is quite possible that it was deleted because it is not a general legal question, in violation of the acceptable use policy. If you want a historical analysis of your particular case, it should be asked on Law Meta. | As a state university, the institution would be subject to First Amendment restrictions on their restrictions. They cannot prohibit expression of religious or irreligious viewpoints, they cannot prohibit expression of racist or anti-racist viewpoints, and so on. That said, there may be some murk pertaining to anti-discrimination legislation and the concept of a hostile environment. See for example this statement from U. Michigan: the underpinnings of any such restrictions are pretty broad (see the USC statement, including titles VI and VII of theCivil Rights Act of 1964, Title IX of the Education Amendments of 1972, and so on – those sorts of concerns apply to private schools as well). SWOSU has a long list of prohibited activities. The only rule that marginally looks like it could cover bad language is the ban on General misconduct that adversely affects the student's suitability as a member of the university community such as immorality, commission of major crimes, inciting disorders, association with known criminals, peace disturbances, disorderly conduct, and all acts that recklessly endanger the students or others. And that would be an incredible stretch. The residence handbook states, pertaining to the rooms, that Obscene material, including, but not limited to, pornographic literature, X-rated movies, and displays of profanity or language that is offensive to others may not be displayed. I assume that someone would be offended by the B word, so you can't display that on a poster in your room. This does not apply to verbal profanity or profanity in the lobby. Since they don't make the residency agreement publicly accessible, I can't see what they might have said there that implies a no-profanity rule. I should mention that university employees often over-interpret their authority, so it is not guaranteed that this is actual university policy (even is distributed by the front desk in a dorm). It may, however, be necessary to sue the university in order to get a clear indication that this is official policy, and that the policy is not a violation of the First Amendment. I would expect that the rationale has to do with "hostile environment". A second runner-up would be that it's about "disorderly conduct", which is where Florida A&M places their anti-profanity rule. | No. I can't give a more detailed answer without reference to a specific statute. But just about every state anti-bullying statute in the U.S. restricts the definition to...well, bullying. There is a good summary of state bullying and cyberbullying statutes here. The laws are varied, but they invariable contain words like "harassment", "abuse", "threatening," "fear," and "hostile environment." Would it be possible to "cyberbully" someone on Stack Exchange under some of these statutes? Sure. You could do it in comments; in answers; even in questions. "Question: Is Bill in my algebra class a dork, or a tool?" Comment: "This is a terrible question, and I'm going to burn your house down. Downvoting." You could probably fit something like that under some of the broader statutes--although they still for the most part haven't been tested for First Amendment issues. But I don't know of any statute broad enough to include downvoting a question or answer, on a site people post on knowing that the whole purpose of posting is to allow their posts to be upvoted and downvoted. If there was such a statute--and again, I don't know of any--it would almost certainly be unconstitutional. There is no law against hurting people's feelings, at least in the United States, and a law that allows people to seek legal redress for someone saying "I disagree with you" is pretty much the poster child for a First Amendment violation. | Ducks are ducks, not people. It might surprise you, but even a hypothetical duck that could talk is a type of bird and is considered a waterfowl and wild game but not a person or human. As such, you can not commit any crime such as assault against it. In fact, provided that the lemonade stand owner has a hunting license and this is not in a zone where you can not hunt, such as inside a town, he could have shot the bird without repercussions - because a duck can be hunted. Threatening game birds is not covered by any law. Only would the lemonade stand owner have glued the bird to a tree he would have committed a crime, because gluing birds somewhere would be considered animal cruelty in most jurisdictions. As the duck is a bird and not a person, it can not commit any crimes, such as harassment. If a duck is a person... Assuming that there is such a place where duck is a slang term for a person, or where ducks are considered people, then the pattern is different: Such as duck would indeed perform a repeated action that is very much aimed at annoying the lemonade stand owner. But that is not necessarily legally harassment: In Germany, § 238 StGB is aimed at stalking and requires the aim of inciting fear, § 185 StGB is for insulting speech, including harassing speech, § 186 StGB is for defamation, and § 240 StGB for coercion through harassment. A charge under those would be tedious. In the United Kingdom, the English Protection from Harassment Act 1997, does not define harassment as any specific pattern. Scotland's variant reads a little simpler, and makes harassment for harassment's sake illegal. These laws might be applied to the duck. Many of the United States federal laws will simply not apply to the situation. Title VII of the Civil Rights Act of 1964 is about sexual harassment in the workplace, Title IX of the Education Amendments Act of 1972 is for schools, and the Fair Housing Act does deal with home purchases and renting. All seem inapplicable. If the threat of gluing someone to a tree is a real threat under the law depends very much again. In Germany, it might be interpreted as too hilarious to be considered a true threat, but humiliating enough to constitute one of the insult laws, but the lyrics do not offer enough facts to make a proper analysis for this part. | The key limiting factors are the language: and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. And, also, the context of the term "belief" in the statute in conjunction with religion which is defined in the same section, which suggests that in this context it is intended to be understood as the kind of belief that constitutes a core worldview for a person, even if it is secular (e.g. Confucianism or a Stoic philosophy of life), rather than isolated particular ideas about factual things. There is also considerable room for judicial interpretation over whether, for example "effect of" is limited to an "effect" reasonably derived from the "conduct" in question. Still, in general, the U.K., has higher standards mandating civility in dealings with others than the U.S., and there is lots of conduct barred by the Equality Act of 2010 which would not be barred under U.S. law, for example. The closest analog in U.S. law is really the tort of "outrageous conduct" also sometimes known as "intentional infliction of emotional distress." |
Will tenancy agreement still be valid if the property manager/broker who signed on behalf of landlord is terminated? In BC, Canada, if a tenancy agreement is signed by a brokerage/property manager on behalf the landlord, and the property manager's contract is terminated early, will that make the tenancy agreement invalid? Does the tenant need to re-sign with the landlord directly? Or does nothing need to be done? | on behalf means that the party of the agreement is the landlord, not the property manager. The contract both entitles and obliges the landlord, not the property manager. The property manager is not a party of the contract. So the fact that the property manager is fired completely unrelated to the existing contract. Additionally, in most jurisdictions that I know of, even if the property changed ownership (the landlord sold or gifted it, or the landlord died and it was inherited by someone) the contract would still be in force, as the change of situations would not invalidated the rights and obligations of the other parties. | the landlord has been living there for a week. Is this allowed? Am I still expected to pay rent if he is living there? Generally speaking, no. But you need to verify that your lease contains no language that overrides certain basic assumption about leases. My understanding is that (1) you delivered the property, and (2) the landlord was not entitled to live there during your tenancy. Usually one basic assumption in a lease is that only the tenants and their beneficiaries/guests ("tenants", for brevity) are entitled to use the property. It appears that the landlord is neither. Your delivery of the property enabled the landlord to reassign the tenant's exclusive right whenever the landlord deems it fit. The scenario of you finding someone to replace you in the lease is merely one alternative from which the landlord can make the informed decision to reassign that right. The event of reassignment automatically releases you from subsequent payments related to your early move-out. Accordingly, the landlord's informed and willful reassignment (in this case, to himself) of the aforementioned exclusive right forfeits his entitlement to subsequent payments from you. This renders the [rest of the] lease voidable by you. In this regard, see Restatement (Second) of Contracts at §§ 151 and 153(a). There is also an issue of fraud and quantum meruit (see also unjust enrichment) insofar as the landlord benefited at your expense (in the form of your father's work on behalf of you) without informing you that reassignment had taken place already. The landlord knowingly and intentionally deprived you of the opportunity to decide whether to keep taking care of property about which you no longer had any obligation. I presume you already are mindful of this but I should still mention it: Make sure you can prove the landlord was actually using the property rather than inspecting/enhancing/managing it. | british-columbia All of this is from the Residential Tenancy Act and related decisions from the Residential Tenancy Branch (a delegate of the director). A tenant is entitled to exclusive possession subject only to the landlord's limited right of entry, described next. As long as there is a tenancy, the landlord cannot enter unless: the tenant consents, or the landlord gives 24 hours notice and enters between 8am and 9pm (up to monthly), or the landlord is providing agreed-upon housekeeping services, or the landlord has an order of the director authorizing entry, or the tenant has abandonned the unit, or an emergency exists. If satisfied that the landlord will enter other than as authorized above, the director can authorize the tenant to change the locks. If a landlord does not comply with the Act, the director can make orders to give effect to the tenant's rights, and can award compensation. One such possible award, where the tenant can establish that the landlord is trespassing contrary to the permitted entry described above, is retroactive rent decrease, consistent with the loss of a right to exclusive possession. | The actual law in BC, the Residential Tenancy Act, guaranteed a tenant's rights to the rental unit and the common areas, and restricts the landlord's right to enter the rental unit. Common areas are distinct from the rental unit. A common areas is "any part of residential property the use of which is shared by tenants, or by a landlord and one or more tenants", and a rental unit is a "living accommodation rented or intended to be rented to a tenant". In this case, that would be the room. There is no restriction at all on landlord's access to common areas, and there is no requirement that landlord access to common areas be for specific purposes. Access to the rental unit, on the other hand, must be for a reasonable purpose. | Is there a law requiring a landlord to respond to rental agencies request for information in regards to previous tenants? No. There is no such law. | In general, a properly signed lease is binding. But there are exceptions, and they vary depending on the jurisdiction: country, state/province, and even city or county in many places. You mention a claim that the property should not be leased "because the owner needs it". In some jurisdictions, there is a special exception if the owner personally, or a member of the owner's immediate family, intended to live in the property. It is not clear form the question if such an exception would apply. it might well be that a person in the position described in the question has a valid and enforceable lease, and could simply remain in the property, paying rent, and the owner would have no valid grounds for eviction. But this kind of case will depend on the exact wording of the rental agreement, and on the exact provisions of the applicable laws, which vary widely depending on the location of the property. A person in this kind of situation would b wise to consult a local lawyer who will know local property law, and how the provisions of the agreement and other claims will be treated by local courts. There may also be local tenant assistance organizations, run by the government or by non-profit groups, who will know local law and can assist in such cases. A general answer cannot be gotten from a forum such as this which an individual should rely upon in such a case, particularly when the question does not even state what country, let alone what specific locality, is involved. | Is this even legal? Yes, it is lawful. The Ontario Tenancy Act does not seem to outlaw that type of clauses. But the clause (or lease) will be binding only if you agree to it. Also note that the clause refers to reasonable costs, which implies that those costs must be for a reasonable cause. In other words, the landlord would be barred from recovery of legal expenses if you persuade the Board that the landlord's complaint is frivolous or vexatious. Notwithstanding that the clause is lawful, I would personally discourage you from agreeing to pay the adversary's attorney fees. Note that the clause may apply in the event that neither party fully prevails, whence it is in your best interest to preclude the risk of having to reimburse the landlord in that scenario. | I have read that Assured Shorthold Tenancies of less than 6 months are allowed, but you are not allowed to evict a tenant before 6 months. That applies only to section 21 ("no fault") evictions. Specifically, according to section 21 of the Housing Act 1988, a notice can't be served in the first 4 months of a tenancy (section 21(4B)), and can't take effect in the first 6 months (section 21(5)). Section 8 evictions, which require one or more of the reasons listed in Schedule 2 of the Act, do not have this restriction - though only some of them can be used during the fixed term part of the tenancy, and they must be listed in the tenancy agreement in order to be used in that way. Will I have to wait until he has actually left before I can arrange an AST with new tenants? Yes, but that's always true. It's very unwise for a new tenancy agreement to be signed until the previous tenants have moved out, because if they don't leave before the new agreement takes effect, the landlord is now committed to finding accommodation for the new tenants. This is why tenancy agreements are often only signed on the first day of the tenancy. |
Why capitalize P in "Provided that", when no punctuation precedes it and it's not starting a new paragraph? I emboldened and italicized the "Provided that"s. I confirm that Tenancy Agreement has no punctuation before them. Indubitably they're not starting a new paragraph. Why's P capitalized in "Provided that"? Are these typos? Yield Up the Said Premises and Handover To quietly yield up and deliver the said premises together with the furnishings and all fixtures, fittings and additions therein and thereto at the expiration or sooner determination of this Agreement in good, clean and tenantable repair and condition (fair wear and tear excepted) in accordance with its covenants to repair herein contained notwithstanding any rule of law or equity to the contrary PROVIDED THAT all personal properties and effects, alterations, decorations, partitions, fixtures, fittings and additions therein and thereto of the Tenant or occupier of the said premises shall notwithstanding that the Landlord's consent for the same may have been obtained or given or deemed to have been given if so required at the sole discretion of the Landlord be removed by and at the sole cost and expense of the Tenant at the expiration or sooner determination of this Agreement and the Tenant shall make good and repair in a proper and workmanlike manner all damage to the said premises the said building and the Landlord's fixtures and fittings and the furnishings in the said premises caused by such removal and reinstate the whole or part of the said premises to the condition as they were in at the commencement of the said term AND thereupon to surrender to the Landlord or its agent all keys giving access to all parts of the said premises held by the Tenant and at the Tenant's expense to remove from the doors of the said premises and the directory boards of the said building (if any) all lettering and characters and to make good any damage caused by such removal Provided that if the Tenant fails to remove its personal properties and effects as left in the said premises (hereinafter referred to as "the abandoned items") the Landlord shall be entitled to give notice in writing to the Tenant to demand the Tenant to remove the abandoned items within three (3) days from the date of the said notice, failing which the Landlord shall be entitled to remove the abandoned items from the said premises without incurring any liability whatsoever to the Tenant therefor but at the costs and expenses of the Tenant to be reimbursed by the Tenant to the Landlord forthwith upon demand or to be recovered by the Landlord from the Tenant as a debt hereunder payable AND thereafter the Landlord may by further notice in writing to the Tenant to demand the Tenant to collect the abandoned items in the manner as may be stated in the said notice but upon full payment of the aforesaid costs and expenses and such further or other costs and expenses which may then have been incurred (including but not limited to storage charges or fees) within three (3) days from the date of the said further notice, failing which the Landlord shall be absolutely entitled to dispose of, sell, give away or otherwise deal with the abandoned items as it shall in its sole discretion see fit and the Tenant shall be deemed to have abandoned its right of ownership of the abandoned items and the right to reclaim the same and/or to claim against and recover from the Landlord any proceeds of sale of the abandoned items if sold by or through or by the order of the Landlord and the Tenant shall indemnify and keep the Landlord indemnified fully against all such demand, claim, proceedings and costs made and brought against the Landlord by any third party(ies) in connection with and/or for the re-claim or recovery of the abandoned items or any part(s) thereof or any proceeds from sale of the same or any part(s) thereof. Breach of Insurance Policy Not to do or permit or suffer or cause to be done any act, deed, matter or thing whatsoever whereby the policy or policies of insurance on the said building or the said premises or any part or parts thereof against loss or damage by fire and/or other insurable perils and/or claims by or liabilities to third parties for the time being in force may be rendered void or voidable or whereby the rate of premium thereon may be increased Provided that if as the result of any act, deed, matter or thing done, permitted, suffered or caused by the Tenant or occupier of the said premises, the premium on any such policy or policies of insurance shall be increased the Landlord shall be entitled without prejudice to any other remedy hereunder to recover from the Tenant the amount of any such increase and the Tenant shall forthwith repay to the Landlord on demand all sums paid by the Landlord by way of increased or additional premium thereon and all expenses incurred by the Landlord in and about any renewal of such policy or policies arising from or rendered necessary by such breach and in the event of the said premises or the said building or any part or parts thereof being damaged or destroyed by fire or other insurable cause at any time and the insurance money under any insurance against fire or other such cause effected thereon being wholly or partially irrecoverable by reason solely or in part of the Tenant's act or default then and in every such case to forthwith pay to the Landlord the whole or (as the case may require) a fair proportion of the cost of completely rebuilding or reinstating the same. EXCEPTIONS AND RESERVATIONS (a) The right to remove, cancel, relocate or otherwise change or carry out any alteration or addition or other works to the common areas (including but not limited to entrances, passages, corridors and staircases) and common facilities (including but not limited to lifts, escalators and toilets) of the said building and such other part or parts of the said building ( other than the said premises) from time to time and in such manner as the Landlord may in its absolute discretion deem fit without the same constituting an actual or constructive eviction of the Tenant and without incut1'ing any liability whatsoever to the Tenant therefor. In particular, the Landlord hereby expressly reserves the right at any time and at its sole discretion to renovate or refurbish the commercial/retail accommodation of the said building and to change, alter, amend, vary, add to and relocate the layout of the commercial/retail accommodation including but not limited to the external walls, entrance lobbies, staircases, landings, passages, corridors, toilets, lifts and escalators and to carry out works to effect such renovation, refurbishment, change, alteration, amendment, variation, addition and re-location Provided that the size of the said premises shall not be affected or reduced in any way And Provided further that the Tenant shall not be entitled to object to the renovation, refurbishment, change, alteration, amendment, variation, addition, re-location or any works thereof and shall have no right of action or claim for compensation whatsoever in connection with any matters arising from this Clause. | There is no grammatical reason for the capitalisation of the 'P' in this situation. It is used merely to merely emphasis the following condition(s) or, as you suggest, typos. | In general, the words "due on" take on their ordinary meaning - that is, that the performance of a contract is required on or before the date specified. If it is not specified in the contract, a court will look to what is reasonable in the circumstances. For instance, if payment is due to a company that trades 24 hours a day including the day payment was due, then payment up until midnight may be found acceptable. However, if it is not known to the person making the payment that the business has such extended hours, and especially if it is known that the business has normal hours, then payment after close of business would likely not be reasonable. To your question, and having reviewed some Canadian residential rent legislation, although none define due on specifically - and I would not expect them to do so - most have clauses which provide for termination, and they only refer to serving notice either a certain number of days after rent falls due, or the day after rent falls due. This would tend to support my assertion that rent is payable on or before the specified date, unless the contract says otherwise, in line with the above considerations. NB: While rent is usually payable in advance, this simply means that you are paying for the occupancy during that follows, or substantially follows, rather than the period that has elapsed. | There are several questions in the OP. The answers to all of them depend on the lease terms. If Person A wants out of the lease, is the only option to just try to negotiate a way out of their portion of the lease with the landlord, presumably by payment or other means? Yes, usually. Regardless of who is on the lease, Person A is on the lease. In order to terminate or break the lease, Person A will have to negotiate termination. Most residential leases provide for joint and several liability for lease obligations. That means the co-signed lease is like three non-exclusive leases, one each between landlord and Persons A, B, and C. So Person A has to find a way to break the Person A lease. Other than a breach by either party, that likely can only be done by negotiation with landlord. What rights do Person B and C have if Person A does stop paying? Absent some other relationship or understanding between them (that is, other than the lease,) likely none. Persons B and C are each fully responsible to pay all of the rent. In other words, as far as the landlord is concerned it does not matter who pays the rent as long as it gets paid. If it doesn't get paid, the landlord can evict and sue all 3 for non-payment of rent. But the lease likely does not discuss the relationships between A, B, and C - whether they pay pro rata by time in the unit, by space used, per capita, or whatever. Landlord doesn't care, and is not the counterparty to those decisions. That said, if there is a relationship between A, B, & C (for instance, if A & B had a contract describing who would pay what, and B entered into another contract with C,) that will determine their relative obligations. The landlord agrees to allow the lease to be amended for another person, person C to be on the lease. Person B negotiated this with the landlord without consent of person A. This may create liability between B to A, C to A, or B & C to A. It is even conceivable that it creates a liability from landlord to A, if A had a reasonable expectation that the lease would not be amended absent A's consent. And the amendment may not be enforceable against A. So, for instance, A may be able to kick C out of the unit and bar C from reentry. It will not effect A's liability to pay rent. | Short Answer Can an incomplete and unsafe building be rented to a tenant on a commercial lease if the building never received a certificate of occupancy? Yes. Unless your lease says otherwise. Your sole source of legal protections is your lease. Without knowing the detailed provisions of your lease, it is impossible to know. Long Answer The General Rule In commercial leases, to a much greater degree than in residential leases, the principle of buyer beware (a.k.a. caveat emptor) applies. Commercial leases are typically negotiated between sophisticated parties, and if the tenant doesn't want to start paying rent until the certificate of occupancy is issued despite a lease that says otherwise, then that is tough luck and the tenant is bound to the terms of the lease. Commercial leases are generally rented in "as is" condition, sometimes with and sometimes without a tenant finish and improvements allowance from the landlord. Unless otherwise agreed, in a commercial lease, the burden is on the tenant to do "due diligence" including a physical inspection of the property by a professional inspector and independent review of the zoning status of the property to confirm that the tenant's business is allowed to operate at that location, much as a buyer of real estate would. If the tenant identifies an objection during the due diligence period set forth in the lease or contract to enter into a lease with the tenant, then the tenant can choose to get out of the lease obligation. But, there is only a due diligence condition if the tenant bargains for it. The lease allocates responsibility to maintain the building in good repair and may allocated this responsibility to the landlord or the the tenant. In one of the most common types of commercial leases, called a triple net lease, virtually all maintenance obligations are the tenant's responsibility: The triple net absolves the landlord of the most risk of any net lease. Even the costs of structural maintenance and repairs must be paid by the tenant in addition to rent, property taxes and insurance premiums. Some firms, such as WeWork build their entire business model around entering into the "as is", triple net commercial leases with landlords that are the norm, and then subletting the properties to smaller businesses on a furnished, all maintenance and building services provided, gross lease basis. Many states have statutory or common law implied warranties of habitability in the case of residential leases that require that a certificate of occupancy be in place and that other conditions be met by the landlord: An implied warranty of habitability is a warranty implied by law in all residential leases [ed. in states that have such a warranty] that the premises are fit and habitable for human habitation and that the premises will remain fit and habitable throughout the duration of the lease. New Mexico, in particular, has many statutory protections for residential tenants (statutes found here). But, almost none of these protections extend to commercial leases in New Mexico, because commercial leases are not leases of dwelling units, as defined in the relevant statutes. Note that not every state even has an implied warranty of habitability for residential tenancies. Colorado did not have one until the early 2000s, and it had only very weak protections for tenants regarding habitability until the current decade. Before then, in Colorado, a defective or unsafe condition of the premises was not a defense to paying rent under either a commercial or a residential lease in the state. In theory, a county or municipal government could impose a habitability requirement on commercial leases. But, this is very uncommon because, as the examples below illustrate, there are circumstances where it is sensible, even in a fair deal, to place the burden of making property subject to a commercial lease habitable. Examples Of Situations Where This Would Not Be Required In A Fair Deal Most commercial tenants insist upon terms that say that the obligation to pay rent starts when a certificate of occupancy is issued and the tenant is allowed to take possession of the premises. But, there would certainly be some times when a commercial tenant would pay rent on property that does not yet have a certificate of occupancy. For example, in what is called a "pad rental", a business rents a basically vacant lot with only a concrete foundation and utility hookups and zoning approvals in place, and then the tenant builds a shop or office building on the pad. See, e.g., this commercial lease offer on Loopnet, a major internet site for listing property available to be leased by businesses: ABOUT 4900-5100 N WICKHAM RD , MELBOURNE, FL 32940 Rental Rate $3.79 /SF/Yr Listing ID: 15146692 Date Created: 2/11/2019 Last Updated: 3/19/2019 1 LOT AVAILABLE - Rental Rate $3.79 /SF/Yr Lease Term 20 Years Service Type To Be Determined Date Available Now Space Type Relet Lot Size 0.69 AC DESCRIPTION Pad ready site with all utilities, parking field, ingress/egress, retention, and site lighting IN. Join Goodwill, Einstein's Bagel, Verizon, Twins Car Wash, Wickham Road Music, and Nail Salon in this 100% leased new retail center. HIGHLIGHTS Pad ready site. In a commercial pad lease, typically, a tenant would start paying rent immediately and the length of time needed to get the tenant's shop built and approved for occupancy by local government officials is their problem. But, even then, the terms would depend on what was negotiated between the landlord and the tenant which would depend to a great extent on how hot the local commercial real estate market was and on the other terms. A landlord will usually offer more favorable terms (such as a provision stating that rent is not owed until a certificate of occupancy is issued) in a weak rental market, but may also decide to have very tough lease terms with a somewhat lower monthly or annual rental rate. Also, as in the example above, conditioning rent payment on occupancy or availability for occupancy, is less common in a very long term lease such as the twenty year lease being offered for the pad rental above. Something very similar is done in an existing building that requires tenant finish. At one extreme, the landlord will do tenant finish to the tenant's specifications at the landlord's expense and the tenant will only start to pay rent when the tenant takes occupancy. At the other extreme, the tenant will start paying rent immediately and do the tenant finish at the tenant's sole expense. In between, the tenant may do the tenant's own tenant finish pursuant to landlord approved plans, with the landlord contributing a tenant finish allowance that will often be less than the full anticipated cost of tenant finish work, and the rent will be reduced or waived for a set period of time which may be less than the actual or anticipated time that it takes to complete the tenant finish. This gives the tenant an incentive to not waste tenant finish dollars and to push the contractors doing the work to finish as soon as possible. In yet another example, it wouldn't be terribly uncommon for a landlord to rent a commercial space that is already occupied by squatters, or holdover tenants, to a new tenant on a triple net basis. In a lease like that, the tenant is responsible for evicting the current occupants, rather than the landlord. The promise that the leased property won't be occupied by someone else when the lease commences is called the "covenant of quiet enjoyment" (which is "a covenant that promises that the grantee or tenant of an estate in real property will be able to possess the premises in peace, without disturbance by hostile claimants."). This provision is often, but not always, included in a commercial lease, although often, courts will imply in law a covenant of quiet enjoyment into even a commercial lease, in the absence of express language in the lease stating that the covenant of quiet enjoyment is not intended to be included in the lease. Conclusion It all boils down to the terms of the lease and a reasonable construction of the relevant lease terms. The fact that there is such a thin amount of legal protection from unfair lease terms is one of the reasons that most commercial tenants hire an attorney to help them negotiate the terms of a commercial lease, in addition to, or instead of, a commercial real estate broker. Footnote: Why Is Commercial Lease Law So Harsh? The duties of a commercial tenant are much closer to, and in some cases, almost identical to, those of an owner of real property and are not infrequently for long terms such as twenty, or even ninety-nine years. Why would a landlord and tenant enter into a commercial lease in these situations, rather than having the prospective tenant simply by the property subject to a mortgage? A lot of this is tax driven. Many businesses would purchase their buildings rather than lease them if taxes were not a consideration and the commercial lease is basically a tax favored alternative to a mortgage payment. When the commercial landlord is a mortgage lender in all but name, and a commercial tenant is a building owner in all but name, it makes sense to place the legal maintenance responsibilities of a building owner on the commercial tenant. A business can deduct every dollar paid in rent from its revenues when determining its taxable income, even the portion economically attributable to land value and depreciation in the structure of the building, as it is paid. But, if the business finances the purchase of the property with a mortgage, the business can deduct the interest paid, but not the principal payments. Depreciation of improvements on real estate (for most of recent U.S. tax history, over a straight line 39.5 year depreciation period) can counterbalance some of the principal payments, although often more slowly than the principal payments are actually made. Also, if depreciation deductions wipe out too much of the business's income, those depreciation deductions are disallowed or deferred. Furthermore, the portion of the purchase price of property attributed to land value can't be depreciated at all. In many cases, this quirk of the tax law is addressed with a business structure in which: (1) a non-profit that doesn't care about the tax treatment of its income leases the land to (2) another business that builds a multi-tenant building on the property which it owns even though it doesn't own the land the building is built upon, subject to a mortgage with a long amortization period similar to the depreciation period for the building, which in turn is (3) leased to businesses that actually used the multi-tenant building by the building owner. Second Footnote On Rent Control and Cooperative Apartments Even further afield, in places like New York City that have rent control, residential tenants become more economically equivalent to apartment owners, and residential landlords become more economically equivalent to a combined mortgage lenders and home owner's association. There was a strong demand for rent control in New York City at the time that rent control was adopted, because economic necessity meant that mostly people needed to live in one unit of a multi-unit apartment building, but the legal concept of ownership of one unit within a larger apartment building that is now commonly called a "condominium" in the United States, did not exist. So, there were a lot of renters in New York City who very much wanted to be de facto apartment owners who didn't have the legal tools available at the time to achieve this goal. The other work around which was used in the Northeast before the condominium was invented was a "cooperative apartment", in which all of the residents of a particular apartment building owned the entire building and were jointly and severally liable on the mortgage on the building, but then were allocated a unit within the building in exchange for economic obligations to the cooperative association that managed the building on a not for profit basis for its owners. | Dale is right; here are the details from CA statutes: Since 1872, CA law has told CA courts to assume the parties to contracts in CA are reasonable, not crazy. If the literal reading of the contract is crazy, the California Civil Code's rules for the Interpretation of Contracts tells its courts: ignore the crazy reading. Here is what the statute says: § 1636 A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. To win under this section, you would need to claim that both you and the landlord intended that the landlord would pay the late fee. No judge would believe this. § 1637 For the purpose of ascertaining the intention of the parties to a contract, if otherwise doubtful, the rules given in this Chapter are to be applied. To win under this section, you would need to claim that there is no doubt that both you and the landlord intended that the landlord would pay the late fee. Again, no judge would believe this. § 1638 The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity. To win under this section, you would need to claim that it was reasonable that the landlord would pay the late fee. Again, no judge would believe this. § 1640 When, through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded. To win under this section, you would also need to claim that both you and the landlord really intended that the landlord would pay the late fee. Since no judge would believe this, any judge would rule that the wording was a mistake, and should be disregarded. § 1643 A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties. Ditto. | I do not believe that there is any requirement to number clauses, paragraphs, or pages, and I have certainly seen contracts where none of these are numbered. It is a common practice to number provisions in some way, in particular to make reference from one to another easier. But not all contracts include such internal references. Contracts presented in electronic form, such as on a web page, may not have any clear concept of separate pages, and so page numbers would be pointless on such contracts. Page numbers on contracts printed out are common, but I do not know of any legal requirement for such numbers. For contracts presented in electronic form, one can ensure against unauthorized modification by including a checksum or hash of the contract text. If a one-way hash function is used, it will be quite hard to produce a text with a different content but an identical hash value. This technique could also be used on printed contracts. However, I do not recall seeing this technique used in practice. | The agent/landlord responsibility is to ensure that the residents have "quiet enjoyment" of the property during the period it is let. As long as your friend has access to the flat he has that. He can ask, but the agent/landlord have no obligation to provide it. Could your friend appoint someone else to go and get their property? There is no reason why he has to do it in person. He should provide this person with a signed letter of authority (just "I, Joseph Bloggs, hereby authorise John Doe to collect my belongings from 123 Cherry Tree Crescent on my behalf", signed and dated) and also send a copy to the agent. Your friend must have a contract with somebody. If he paid a deposit then it should have been kept in a proper deposit protection scheme, and he should have paperwork to that effect. If that wasn't done, then he can sue the person he has the contract with for (in effect) punitive damages in addition to getting his deposit back. You say your friend was "not the lead tenant", so it sounds like one of the tenants was sub-letting, but its not clear; it may be that this "lead tenant" was just acting as a point of contact for stuff like rent collection. Your friend should have some kind of written tenancy agreement; he can sue the person or company named named on that. If the tenancy was a verbal contract then he can sue the person he handed the deposit to. | Section 11(6) of the Landlord and Tenant Act 1985 says In a lease in which the lessor’s repairing covenant is implied there is also implied a covenant by the lessee that the lessor, or any person authorised by him in writing, may at reasonable times of the day and on giving 24 hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair. There is also an absolute right to enter in an emergency (such as fire). Note that the law does not require tenant permission (a landlord may obviously enter for any reason with permission): the law says when he may do so without permission. If the "viewing" is related to repairs, then you just have to accept it. However, "viewing" usually means "showing prospective new tenants". In that case, there is the 28 day end-of-tenancy entry right which, if you didn't omit anything, is not relevant. In light of the common law right to quiet enjoyment, you have the right to exclude the landlord (or anyone else) absent a statutorily expressed override. Permission can be inferred by word or action under common law, for example if a person appears at the door and you open it wide and step aside, you have implicitly granted permission even if you didn't say "I hereby permit". Explicitly denying permission (even once) eliminates any reasonable possibility of inferring permission. If you had gotten an email saying "we'll come by at 4:30" and you reply "Alrighteo, see you then", that can reasonably be interpreted as permission. If you do not reply, they cannot infer permission (obviously: X sending a message to Y does not entail that Y received or read the message). If a person does not have a right to enter property, then doing so by force constitutes trespass, which is plainly against the law. |
Is it illegal for a US voter to disclose their ballot choices? This is a follow-on question from Politics SE, wherein several participants claimed that it was illegal for a voter to divulge their own ballot choices. As this is purely a question of law, rather than politics, this issue is more appropriate for Law SE. So, are there any US States that have made it illegal for a voter to disclose their ballot (voting) choices? | Short answer: It depends on the state and exactly how you do so. Stating how you voted, by itself, is fine; however, taking a photo of your ballot instead of just saying how you voted is illegal in some states, especially if the photo was taken within a polling place. Laws banning these so-called "ballot selfies" may be unconstitutional, and have been successfully challenged under the first amendment in some cases. There is not a general ban on simply saying who you voted for. This is an extremely common practice, and it is the basis for "exit polling," where voters leaving a polling place are asked whom they voted for in order to collect voting statistics to predict the winner of the election. This type of polling has been upheld by courts, and it sounds like laws banning it were primarily concerned with voter intimidation rather than vote-buying. As of 2016, 18 states banned sharing any photograph of a ballot, while an additional 6 ban photography in polling places. The rationale for such laws is to prevent vote-buying, because if you can't take a photo of your ballot, you can't prove whom you voted for (whereas without the photo, you could simply vote however you like, then lie). However, at least one such law has been challenged in federal court and invalidated as a violation of the first amendment (in Rideout v. Gardner) "because it is a content-based restriction on speech that cannot survive strict scrutiny." If such first-amendment challenges continue to be upheld, it is possible that this practice will be legal throughout the United States. | From the German lawyer association ("Deutscher Anwaltverein") one can find the following (Google-translation): In the case of a purely preventive identity check, the officers are initially only allowed to determine the identity of the respondent. This means that you can ask for your name, date and place of birth, home address and nationality and have your ID shown - by the way, as a German citizen you don't have to always have your ID with you. "You don't have to answer any questions beyond that," says lawyer Robert Hotstegs from the German Lawyers' Association (DAV). Of course, police officers often try to gather more information with emphatically casual questions. "Well, where do we come from" or: "And where are we going now?" Are typical examples. The police are not allowed to insist on an answer. Anyone who, as a respondent, is voluntarily too willing to provide information can harm themselves and possibly even give rise to concrete suspicions. So they are allowed to ask such things, but you don't need to answer everything. How to handle such situations, again according to the link above: “I recommend answering the survey as briefly and politely as possible. This has a de-escalating effect and helps to end the unpleasant situation as quickly as possible, ”says Attorney Hotstegs. However, you should always answer the questions about yourself. Because if the police cannot determine the identity of a person or only with great effort, they may take further measures to determine the identity. This includes taking it to the police station and, under certain circumstances, a search. Otherwise, these measures are not permitted without a specific reason. | Title 52, section 30121 of the US Code is the section regulating election spending by foreign nationals. Specifically, it forbids both making and accepting said contributions, as well as banning independent expenditures: (a) Prohibition It shall be unlawful for- (1) a foreign national, directly or indirectly, to make- (A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; (B) a contribution or donation to a committee of a political party; or (C) an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or (2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national. (1) would get you. (2) would get Trump. Extradition may be difficult, but you have committed a US crime if Trump takes that contribution, and if you do turn up in the US then the US might prosecute you for it (they almost certainly won't, but they could). | I am assuming you are not the councilor. Civil matter you have no standing. The councilor does. Maybe the hotel bar does. I can’t think of anyone else who does. Criminal matter If a crime was committed in DC, the DC prosecutor is under no obligation to prosecute it. As a political matter, if you were a citizen of DC you could complain and try to get the prosecutor voted out next election. Political matter As a citizen of your city, it is a political matter: You call your councilman* or any city councilman really and ask them to begin impeachment or whatever similar action you have there. Then next election to try to get the mayor voted out. If you are unsatisfied with the council, try to get them voted out also. The cost of investigation is a cost of running a government. Someone could have chosen not to spend seven grand investigating a hundred bucks, but they did it. *Note this is called petitioning for redress which is the right that the current SCOTUS nominee could not recall off the top of her head. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | No. In order to practice law, one must establish an attorney-client relationship. Participation in Internet forums absolutely does not establish an attorney-client relationship. Everyone involved in law spends a disproportionate amount of time disclaiming this, so nobody inside the field will be confused on this point. I believe this is also directly stated in the Terms of Service. And as Jen notes, upvoting/downvoting is not even agreeing with the legal validity of the answer. Take the tour or read help pages for what voting means. It's perfectly conceivable for a psychic who knows how to sway people could write a better voted answer than three lawyers. | Illegal to write? No. Notwithstanding the First Amendment which would almost certainly make a law prohibiting it illegal, writing such things is an essential part of an IT security professional’s toolkit. You can’t protect against worms if you don’t know how they work. Illegal to distribute on an unauthorised computer? Absolutely. This would be a clear breach of the Computer Fraud and Abuse Act. | The recording is not illegal because you've been told it would happen, and by not hanging up, you've agreed to have a conversation that can be recorded. This was determined in Kearney v. Salomon Smith Barney, Inc. applying the exception of Penal Code 632 that communications are not considered confidential if there is a reasonable expectation that the call will be overheard or recorded - being explicitly told that the call will be recorded makes this true. It would not be illegal for them to only record their own statements during the call, nor for you to record only your statements, either. In particular, the company is allowed to record the part of the call where they make this statement, as they are not recording a conversation, only their own (likely pre-recorded) statement (again?). Indeed, including their statement about the recording in the recording is common practise partly for protection against claims that the other party was not informed of the recording occurring. |
Is it a bait and switch if someone pays for something, then they say it's unavailable? I recently paid for a major airline ticket, and it got processed saying that the payment worked (on the website, and printed out the PDF). A moment later they canceled my order. Is this a bait and switch, or illegal false advertising for not confirming that it was available at that price (i.e. they changed the price after I clicked submit, and it said "confirmed")? | It is not a bait and switch, nor false advertising. It might be a violation of contract, depending on the exact wording of the TOS or other agreement with the site. Probably not. "Bait and switch" refers to the tactic of advertising a specific product at a good price to draw one into a store (or to a site) and then claiming to be out of the advertised item, and attempting to sell the buyer a different item, usually one that is not as good a bargain. Even then, this is only illegal in most places if the seller did not have enough stock to meet reasonably anticipated demand. A notice such as "quantities limited" or "while supplies last" generally makes this legal. If no attempt is made to "switch" the customer to a different product, there is also usually no illegality. Whether this is false advertising depends on exactly how it was advertised. If the TOS or ads contained wording such as "no purchase is final until confirmed with airline" then there is probably no false advertising, but the exact definition depends on the specifics of local law, and the details of the facts will matter a good bit. | Your terms and conditions must comply with the laws in: Your jurisdiction (California) Your customer's jurisdiction (each of the US states, Canadian provinces and ultimately countries and sub-jurisdictions in Europe) If they do they will generally be enforceable; if they don't then they will not be enforceable and you may be exposing yourself to civil and criminal sanctions. While not immediately relevant to you, Australian Consumer Law has such sanctions to goods sold into Australia from anywhere in the world; I am not familiar with other jurisdictions. With respect to your comment that you will not accept returns or refunds, this would expose you to potential fines in Australia of $220,000 for an individual or $1,100,000 for a corporation - under Australian Consumer Law returns and refunds are a consumer right. I strongly suspect that most of the jurisdictions you are selling into would take a similar position. A general "catch-all" like "to the extent permitted by law" may reduce the risk of being prosecuted but it would not eliminate it entirely. Again, in Australia, the provision is that you must not engage in deceptive and misleading conduct - merely suggesting that you will not give a refund even with the limitation above - may still be deemed "deceptive and misleading" if the court feels that a reasonable consumer might assume that they are not entitled to a refund. You need professional legal advice on this. | Let’s say I go to a cash machine, ask for £100, and the machine gives me £10,000. I use my banking app and see that £100 left my account, not £10,000. At this point I haven’t done anything illegal. If I asked for another £100 and got £10,000 again, that might be illegal. But the extra £9,900 are not mine. They are the bank’s money. If I try to keep it, that is simply theft. | You paid a higher amount so you got to drive the latest model for a year. I can buy a lower amount right now, but I only get to drive last year's model. Or I can pay a higher amount to drive the latest model again. That's life. I have a Wii. I didn't buy it when people queued up for it, but when the shop was selling them off for half the price. That's life. You pay more for the latest and greatest, and then it gets cheaper. The protection you are talking about is this: If the shop advertises a motorbike for £8,000 and when you go into the store the price is suddenly £10,000 then there is some protection in place. The protection means the shop will get a major telling off from trading standards if you complain, and possibly a fine. It doesn't mean you get the motorbike for £8,000. And it most definitely doesn't mean you get money back when they reduce the price a year later. | 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. | Airlines do not sell the same ticket to multiple people: each person gets their own ticket (you can verify that by looking at the ticket number, which is unique). They do sell more tickets than can be accommodated by particular airplane. In so doing, no material false claim is made. Consumers may have wrong ideas about what buying a ticket means, but airlines are not obscuring anything. The United Carriage Contract specifically says, rule 5G: All of UA’s flights are subject to overbooking which could result in UA’s inability to provide previously confirmed reserved space for a given flight or for the class of service reserved. In that event, UA’s obligation to the Passenger is governed by Rule 25. You can pretty much Google "contract of carriage ___" filling in the desired airline, to find the applicable clause. | It's not legal The terms that you agree when you enter a contract can only be changed if: the contract provides for variation of its terms and then, only in accordance with that procedure. This may allow unilateral changes - these are common in ongoing relationships like telephone and ISP contracts but it appears from the Kickstarter page that this was not the case here. the parties agree to vary the contract either by deed or by another contract. If by deed then the law of making deeds must be followed, if by contract then the laws of contract must be followed. You mention "around $70AUD" which leads me to guess that you are in Australia. If you were there when you entered the contract then the Australian Consumer Law will apply to the transaction and, more generally, to William Painter since they explicitly "do business in" Australia because they ship there. It is illegal to make misleading and deceptive claims under the ACL and the fines can be huge. Perhaps a note pointing this out to them and letting them know that if they waive their fees in you case(s), you wont feel the need to report them to the ACCC. | There are vendors providing software to facilitate this sort of task. Avalara is perhaps the best known, but I don't have any experience with it and couldn't say whether it's actually any good or not. But the bottom line is that in a destination-based sourcing regime, sales taxes must be computed based on the address of the destination, not city or ZIP code associated with that address. As Avalara has noted, this is a giant hassle, but it's nonetheless the current state of the law. Of course, this assumes the seller has sufficient nexus with Louisiana to trigger a duty to collect sales taxes in the first place. From the question, it is not clear whether this is true. |
What would it actually mean for a minor "3rd party" to get 5% of the vote in a general election? United States here. I have several friends who are Libertarian and who claim that if Jo Jorgensen (Libertarian candidate) gets 5% of "the vote" this general election, they will begin getting "equal ballot access" and "federal funding". I did a few Google searches to get more information about these claims but not much cropped up. Can someone with a solid knowledge of the voting system here in the US help explain to me what a 5% vote for the Libertarian Party (or any "3rd party") actually means? | Two Questions This is actually to separate questions. Qualified candidates may receive funds from the federal Presidential Election Campaign Fund. Ballot access depends on the provisions of state laws. One does not imply the other. Federal Funding Candidates who qualify may elect to receive federal funding from the Presidential Election Campaign Fund for either or both the primary and general elections. "Minor party" candidates are those whose party received at least 5% of the vote in the previous presidential election. "Major party" candidates are those whose part received at least 25% of the vote in the previous presidential election. Those who meet neither level are "new party" candidates. New party candidates may receive partial reimbursements after the election if they get at least 5% in the election. In addition to the vote share, candidates must demonstrate having received at least minimum levels of contributions in "small" donations in each of 20 states or more to be eligible, and must agree to contribution and spending limits, and to making required disclosures. Many candidates who would be eligible elect not to agree to the limits, thus not accepting the funds. See this Wikipedia article (linked above in a comment) for more details. Ballot Access Each US state determines what a candidate must do to be included on the ballot, and these rules vary. In many states any party whose candidate received more than a specified minimum percentage of the vote in a previous election will have its nominee included. In many cases the relevant election is the immediately previous election for Governor. Other candidates may typically qualify by obtaining signatures on a petition. In most states the signers must be registered voters, and a minimum number must come from each county or election district. The details vary by state. For example, In Maryland, Code § 5-703 specifies 10,000 voters, or 1% of the votes cast for Governor in the previous election for Governor , whichever is less. However, under Code § 8-502 a candidate may be placed on the primary ballot by a petition signed by at least 400 registered voters in each Congressional district in the state, or if a candidate is "generally recognized" as a candidate for a "principal political party" as certified by the Secretary of State. Uncer code § 1-101 a "principal political party" us one of the two top vote-getters in the previous election for Governor. By the way, under code § 4-103 a political party, to retain that status, must poll at least 1% of the votes for the highest state-wide office in a general election, or have been selected as the registered choice of at least 1% of the registered voters. All the above citations are to the Maryland election code. Other states will have roughly similar provisions. | The federal law, 18 USC 597, states that Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate; and whoever solicits, accepts, or receives any such expenditure in consideration of his vote or the withholding of his vote shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both. It is not required that the prosecution prove that the recipient voted at all. You just have to make a payment or offer of payment, and you just have to agree to vote or not vote in exchange for that payment. These laws are entirely enforceable. | There is no federal prohibition against sexual discrimination in public accomodations. Colorado has an applicable state law, which covers "any place of business engaged in any sales to the public", where "It is a discriminatory practice and unlawful ...to refuse, withhold from, or deny to an individual or a group, because of ...sexual orientation...the full and equal enjoyment of the goods...". No provision exempts lemonade stands. Churches etc. are specifically exempted: "'Place of public accommodation' shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes". Sex discrimination is allowed "if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation", an argument that can't reasonably be made in the described case. It is also not obvious that running a lemonade stand is a business (the courts will not admit unsubstantiated Wiki assertions as evidence). It would be relevant to wonder what constitutes a "business" under Colorado law. E.g. is a business license required? In Colorado (US) law, it has not been definitively decided whether there can be a religious exception to the anti-discrimination law. Masterpiece Cakeshop was decided without answering that (the state showed clear religious intolerance in its handling of the case). We do not know how a similar case will be decided: Arlene's Flowers was handed back to the state court with the instruction "do it again" (with nothing more than a mention of Masterpiece Cakeshop). The court cannot establish certain beliefs and practices as "valid religions" (Establishment Clause); the proxy expression that is used is "deeply held belief", which includes atheism. The relationship of the issue to the First Amendment is uncertain. | I suspect that US voting records would fall under Article 2(2)(a): Article 2 Material Scope ... This Regulation does not apply to the processing of personal data: (a) in the course of an activity which falls outside the scope of Union law; I doubt it would be possible to argue successfully that a foreign election is anything other than "an activity which falls outside the scope of Union law." Even the territorial scope could be questioned. This is set forth in the next article, on "territorial scope," the second item of which says: This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. It is probably arguable whether processing absentee ballots from EU residents constitutes "offering services to data subjects in the Union," but in this case it's likely to be more difficult to resolve that question than to determine whether the activity falls outside the scope of Union law. | 18 U.S. Code § 611 is the relevant law. (a) It shall be unlawful for any alien to vote in any election held solely or in part for the purpose of electing a candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, unless— (1) the election is held partly for some other purpose; (2) aliens are authorized to vote for such other purpose under a State constitution or statute or a local ordinance; and (3) voting for such other purpose is conducted independently of voting for a candidate for such Federal offices, in such a manner that an alien has the opportunity to vote for such other purpose, but not an opportunity to vote for a candidate for any one or more of such Federal offices. This is not the most straightforward of law on the books. It says "you can't vote unless..." three things. It has to be locally legal to vote for something other than a federal office, the election has to include something other than voting for federal office, and it cannot be possible to vote for a federal office at the same time. Given that, it is impossible for any alien (even documented) to vote for president. Extant alien-voting laws are no higher than municipality, most being in Maryland. Violation of the law is a crime. Because non-citizens are not allowed to vote in state-wide elections, the theory is that they literally cannot vote, so they will not receive a ballot, which comes from the state. Here are the election laws for Maryland. There isn't a provision for "disqualifying" a vote, instead a person is prevented from voting in the first place if they are successfully challenged, because they can't prove who they are or the person they claim to be is not registered to vote (a non-citizen will never be registered with the state to vote, assuming no fraudulent documentation). Takoma Park non-citizen residents can vote in city elections and they register with the local gov't, not the state. | The law does not say. It is up to the judgment of the judge to determine what constitutes "Le fait de provoquer directement à des actes de terrorisme ou de faire publiquement l'apologie de ces actes". I would not have predicted that the act constituted "faire publiquement l'apologie", but if that expression can reasonably construed as meaning "indicating approval of", then I understand the conclusion. The law does not mention SSIDs, that simply falls under the penumbra of "publicly approving of terrorism", and there isn't a specific list of forbidden acts. Analogously, Holocaust denial is against the law in France, and there is not a specific list of things that you can't say, there is a general rule from which specifics can be inferred. Publicly saying "Free Kurdistan!" could be construed as supporting PKK and thus approving of terrorism, but that would be quite a stretch. Using the SSID Pkk21, on the other hand, could be a problem. | It refers to the voters in the state who cast votes. "Elector" isn't a special term invented for the Electoral College, it just means "person who votes in the election." For President, the real election is technically when the Electoral College votes, so those are the "electors." For Senate, the real election is when the people of the state vote, and so every qualified voter in the state is an elector. The provision means that a state has to set the same standards to vote for Senate as to vote for its own legislature; this has always been true for the House, and limits the extent to which a state can undermine the concept of popular election of Congress. | This is an opinion question, even if it doesn't seem like one. The life work of many professors is trying to explain the current system of review. One theory that is fairly well accepted relates to the concept of deference to other political actors. To understand this theory, we need to begin by recognizes that the Court is not unilaterally adjudicating political rights; it is one of many actors that all have some stake in making Constitutional decisions. The Court recognizes this, even if it also demands that it get last word on whether or not it gets last word. In footnote four of Caroline Products the Court laid the foundation for the modern equal protection doctrine. That text embraced a constitutional scheme whereby rights are given judicial protection primarily if they are unlikely to be given political protection by the other branches of government. Under this scheme, we care about groups that are politically weak or political distant from those with power. This equal protection jurisprudence is an example of deferential thinking; we trust the political branches generally unless there is reason to doubt the effectiveness of the political process. The deferential thinking approach to constitutional law holds that we do the same for many other area of Constitutional law. A given enumerated right is only Scrutinized strictly by the courts if the courts don't trust the other political actors (States, Legislature and Executive), to adequately protect that right. As I said, that is a theory. Not everyone agrees that this is what is going on or that this is what should be going on. Moreover, many enumerated rights are protected under a very strict level of review. Strict review and "strict scrutiny" are similar ideas, with the latter being a term of art and the former being a reasonable description of how much attention courts will pay to protecting a given right. |
To what extent is a lawyer guilty of malpractice for material misrepresentations to a client, and the client's counterparties? An investor agreed to invest an amount of money, 2X, in a startup through a convertible note. At the end of two years, the investor had the option of receiving back the monetary amount of his note with accrued interest, or converting his note into equity at a pre determined rate. The terms of the deal were that the investor would invest X up front, to allow the company to acquire a particular asset, and the remaining X upon the company's successful acquisition of this asset, which everyone involved agreed was key to the deal. The company failed to acquire the key asset, and in this contingency, the terms of the contract called for the company to return X to the investor. The company notified the investor's lawyer of this fact, but the lawyer falsely told the client that the asset had been acquired, and asked the client to forward the remaining X. The client failed to do so, which would have been a "default" had the asset, in fact, been acquired. The lawyer also represented to the company that he had reviewed the finances of the investor (he had not), and that the investor was an "accredited investor" as defined by the SEC, who could invest in unregistered securities, even though this was not the case. After two years, the client sued for the return of X, which the company had spent. The company counterclaimed for the remaining X by saying that it would have survived if the investor had invested the whole amount. Because of certain jurisdictional and procedural issues, this set of lawsuits will take years to resolve. Did the lawyer violate a fiduciary duty by telling the client that the asset had been acquired when, in fact it had not been, and if so, what are the consequences to the lawyer? What responsibilities did the lawyer have under "know your customer" or similar legislation to verify the client's ability to invest as an accredited investor? And to what extent is the lawyer liable for the relevant mispresentations? Normally, malpractice is not held against the lawyer unless the client wins the underlying case against the company. Is this true here, or are the lawyer's lapses so egregious and so material to the issues involved that the lawyer can be found liable regardless of the outcome of the investor-company litigation? | Did the lawyer violate a fiduciary duty by telling the client that the asset had been acquired when, in fact it had not been, and if so, what are the consequences to the lawyer? Yes. A lawyer has the obligation that his representations to his client be diligent and materially truthful. Lawyer's violation of that duty prevents his client from making informed decisions. At the outset, the lawyer's malpractice would warrant sanctions by the disciplinary board where he incurred legal malpractice. A possible suspension, public reprimand, and/or the amount of a monetary sanctions depend on several variables such as lawyer's intent, board's rules & discretion, and lawyer's severity & history of malpractice. Quantification of the lawyer's liability to his client depends on the losses the client incurred as a result of the lawyer's misrepresentations. This largely depends on the terms of the contract between the investor and the company. The intentionality (as opposed to negligence) of lawyer's misrepresentations are likely to support a claim of fraud, for which many jurisdictions entitle the injured party to treble damages. What responsibilities did the lawyer have under "know your customer" or similar legislation to verify the client's ability to invest as an accredited investor? Know Your Customer mostly relates to prevention and detection of money-laundering (and, to a lesser extent, of tax evasion), not to provider's awareness of his client's financial sophistication. KYC entails a duty the service provider has --if at all-- toward the authorities, not toward the client and typically not either toward the company in which the client intends to invest. Therefore KYC seems inapplicable in the scenario you describe. It is unclear from your post why the status of accredited investor would be any relevant in this scenario. A startup in need for a particular asset seems unlikely to have a duty to ensure that its investors are classified as accredited for SEC purposes. Normally, malpractice is not held against the lawyer unless the client wins the underlying case against the company. Is this true here That seems unlikely. Despite the several gaps in your description, it certainly reflects separate causes of action involving different parties, different types of relation between them, unrelated states of mind, simultaneous fictions devised by the lawyer, and so forth. Accordingly, the outcomes of investor's ensuing claims against his lawyer are independent of investor's suit against the company. For instance, the extent to which the contract between the investor and the company remained is inconclusive because crucial details of the investor-company contract are missing. Nor is it clear whether the company incurred what is known as invited error by not pressing the investor on the second installment of X the company was expecting. But, regardless of the legal position of the investor and the company with respect to each other, both entities [detrimentally] acted in reasonable reliance on the misrepresentations a third-party made to each of them. | united-states You may be confusing the right to an attorney if you cannot afford one that is applicable only in CRIMINAL cases, not civil cases like you are discussing. You may be able to get an attorney to take your case on a contingency basis but there are two things to keep in mind: The attorney has to have some expectation that the case is winnable. The amount to be recovered must be worth the risk of taking on this case. In other words, for the attorney it's more of a business question that a legal one. Many attorneys will give you a free 30 minute, more or less, consultation. Perhaps you might give that a try. | Does this amount to the employer potentially paying the employee to lie to them, to no ultimate legal effect? Or will the employee have a problem if they end up with an obligation to sign a statement that is not in agreement with reality? Neither. Contract law contemplates a party's subsequent inability to comply with the terms that were established at the formation of the contract. In the Restatement (Second) of Contracts, this is referred to as supervening impracticability. See, for instance, the Restatement at § 261. In the hypothetical scenario you outline, the loss of a company laptop renders the employee's promise (namely, "to return any company-issued computers or devices") impracticable. Instead, the circumstances may entitle the employer to restitution (by the employee) for what the employee now is literally unable to return. That would be cognizable as compliance in substance. | The Example of Colorado Law In Colorado, a private individual who is a victim of theft can bring a lawsuit for civil theft in which a prevailing theft victim can recover the actual economic amount of the theft (including pre-judgment interest at the statutory rate from lost use of the stolen property per a separate pre-judgment interest statute), treble damages (i.e. actual damages plus twice that amount as a civil penalty), and their attorneys' fees and the costs of the litigation. Colorado Revised Statutes § 18-4-405. Rights in stolen property All property obtained by theft, robbery, or burglary shall be restored to the owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to such property. The owner may maintain an action not only against the taker thereof but also against any person in whose possession he finds the property. In any such action, the owner may recover two hundred dollars or three times the amount of the actual damages sustained by him, whichever is greater, and may also recover costs of the action and reasonable attorney fees; but monetary damages and attorney fees shall not be recoverable from a good-faith purchaser or good-faith holder of the property. Returning the property stolen doesn't change the fact that civil theft was committed, it only reduces the amount of the damages by the amount repaid and prevents interest from continuing to accrue. In practice, it would be very uncommon for someone to bring a suit for civil theft after they are repaid. But, nothing in principle prevents this from happening until the statute of limitations runs (in Colorado that is probably three years from the date that the theft is discovered), although there might be an argument that accepting the funds returned by mutual agreement might constitute a waiver of their claim, or might give rise to equitable defenses of estoppel or laches. Criminal Charges Of course, in the U.S., even if the company doesn't press charges, a prosecutor does have the authority to press criminal charges without their consent. A theft victim does not have the legal authority to relieve you of criminal liability for theft. There are some countries other than the U.S. where a theft victim can relieve someone who committed theft of criminal liability (if I recall correctly, Germany is one of them), but that is a minority position internationally as a legal matter (although actual practice is often different). Civil Lawsuits For Theft In Other Jurisdictions While most states do not have a statutory civil theft statute, almost every state and country would allow a civil lawsuit for "conversion" or the equivalent for taking property that does not belong to you for your own benefit (which is a tort). Other U.S. states and other countries would vary over whether repayment of funds converted prior to commencement of a lawsuit limits actual damages and exemplary damages based upon actual damages to pre-judgment interest, or even constitutes a complete defense, or not. Most U.S. states allow for an award of punitive damages in connection with an intentional tort (statutes of limitations and pre-judgment interest award rules vary greatly). Most non-U.S. jurisdictions would not allow an award of punitive damages in a civil action involving an intentional tort. In the absence of a statutory authorization of the kind found in Colorado, attorneys' fees and costs would normally not be allowed for a U.S. plaintiff in an intentional tort case like this one, but most non-U.S. courts would allow an award of attorneys' fees and costs to a prevailing party in a case like this one. Practical Considerations The fact that you repaid the funds makes some defenses to future civil or criminal charges very challenging. You can't truthfully deny that you repaid the funds and that comes close to an admission of guilt. But, if you state under oath that you engaged in this conduct, you make yourself vulnerable to criminal prosecution based upon that testimony under oath. In practice, one reason that the business is actually unlikely to sue you in this situation (unless they discovered that more than $50,000 was taken) is that having lost your job and paid them $50,000 you may not be able to pay even a large judgment if it was awarded against you (although such a judgment, if entered, would probably not be dischargeable in bankruptcy under U.S. law). So, the cost-benefit analysis of such a suit for the company might not make much sense. Also, while having a suit like this filed against you would certainly damage your reputation seriously in a way that could be located with a public records search, it might also moderately harm the reputation of the company which revealed that its internal controls were lax enough to make it possible for the theft to happen. In the case of a large business the damage that this could do to the fair market value of the business and its creditworthiness might outweigh the benefit it would receive from bringing such a lawsuit. | No A lawyer is considered an "officer of the court" in the sense that certain duties to the court are imposed on the lawyer. That does not give the lawyer authority as if the lawyer was part of the court staff, nor a law enforcement officer. A statement can be prosecuted as perjury only if it is made under oath (or affirmation) in court, or if it is made "under penalty of perjury". This is generally done by a statement in a document signed, something like "I declare under penalty of perjury that all statements in the above document are true to the best of my knowledge and belief." It can also be done verbally, with the person making the statement agreeing that it is true and that this is subject to perjury prosecution if it is false. The exact wording will vary, but it must be clear and explicit. Aside from that, false statements to a lawyer are not generally subject to prosecution for perjury, nor otherwise illegal. In some cases a lie in a business transaction may be fraud, which is actionable, and possibly criminal. But that will not have anything to do with whether the person lied to is or is not a lawyer. This Wikipedia article says: Perjury is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding. ... The rules for perjury also apply when a person has made a statement under penalty of perjury even if the person has not been sworn or affirmed as a witness before an appropriate official. An example is the US income tax return, which, by law, must be signed as true and correct under penalty of perjury The US Federal law on perjury, 18 U.S. Code § 1621 says: (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. Title 9 of the Maryland code, section 9-101 says: (a) Prohibited.- A person may not willfully and falsely make an oath or affirmation as to a material fact: (1) if the false swearing is perjury at common law; (2) in an affidavit required by any state, federal, or local law; (3) in an affidavit made to induce a court or officer to pass an account or claim; (4) in an affidavit required by any state, federal, or local government or governmental official with legal authority to require the issuance of an affidavit; or (5) in an affidavit or affirmation made under the Maryland Rules. (b) Penalty.- A person who violates this section is guilty of the misdemeanor of perjury and on conviction is subject to imprisonment not exceeding 10 years. Nothing about statements made to a lawyer not under oath or affirmation, or under penalty of perjury. Other US state laws are similar. | Fundamentally, to what extent is a Limited Partner subject to a potentially ruinous financial situation resulting from financial wrong-doing committed by the Managing Partner? Civil tax liability Under U.S. tax law, a limited partner in a limited partnership that is taxed under Subchapter K of the Internal Revenue Code (i.e. as a partner) is responsible for that limited partner's share of all taxable income of the partnership, for all interest owed on the unpaid taxes, and generally speaking (subject to very narrow exceptions), to penalties assessed on the unpaid tax. Moreover, frequently, the limited partner has no right to be involved in the tax litigation by the tax matters partner of the partnership on the issues that matter. The limited partner's tax liabilities to the federal government and any other taxing authorities with a pass through income tax system are not limited to the limited partner's investment in the limited partnership. Criminal liability exposure The limited partner will generally not have any criminal liability for tax crimes committed by a general partner or other partnership official engaged in tax work on behalf of the limited partnership without more affirmative involvement in and endorsement of the misconduct, although the partnership itself might See U.S. v. Arthur Anderson, LLP (which was reversed on appeal by the U.S. Supreme Court because proof of intent was inadequate, but demonstrated the principle.) A limited partner would bear the limited partner's pro rata share of a criminal fine but that would be limited to the limited partner's investment in the limited liability partnership. Mitigating the harm with a lawsuit The limited partner will usually have a right to bring a civil action (i.e. a lawsuit) against a general partner whose management of the taxes of the partnership cause the limited partner to incur tax penalties, on a breach of fiduciary duty theory, but the limited partner will generally not be able to recover back taxes owed, or interest on back taxes owed, in a lawsuit of this kind. The limited partner might also be able to bring a lawsuit on other theories that might involve an award of punitive damages against the general partner or other person handling the taxes of the partnership who was involved. The legal theories are complex and many would involve a "derivative action" rather than a direct suit against the general partner or manager. Other questions The "what to do about this situation" part of this question is beyond the scope of Law.SE as it calls for individualized legal advice. A good response to this situation would be challenging to formulate for even a specialist business law and litigation practitioner with far more factual detail available. Litigating of issues like this routinely costs each side hundreds of thousands of dollars and can take multiple years. | Generally speaking, a security agreement purporting to use a 401(k) account as collateral is void as a matter of law unless the loan is made by the institution that maintains the 401(k) account. This is also true of many annuity accounts which have special retirement account character (e.g. a TIAA-CREF annuity as part of a teacher's retirement plan). A non-retirement private annuity could normally be foreclosed upon in some manner as security, by forwarding the note, evidence of default and the security agreement to the private annuity holder, assuming that the security interest in the private annuity was properly perfected under the Uniform Commercial Code Article 9. If it was not properly perfected, it still might be possible to access this assets in a court action to enforce the promissory note and security agreement. Default would be sufficient to get a money judgment under the promissory note, and the mere fact that a 401(k) was pledged as collateral when it was not legal to do so would not show promissory fraud, without a showing that the borrower knew this and intended this effect. Otherwise, it could simply be a mutual mistake as to the legality of that security agreement. A court might very well find not fraud but negligence on the part of the creditor for not taking the proper steps to obtain collateral status for the collateral under the Uniform Commercial Code. Even if there was promissory fraud, this would only prevent discharge of the debt in bankruptcy if the creditor made the proper showing in a contested adversary action timely filed in a bankruptcy and would generally not permit access to the 401(k) funds. There are very few exceptions to the immunity of 401(k) funds from creditors claims and nothing in the OP suggests that the facts necessarily to benefit from any exception would be present in this case. | There is no prohibition on lying in general. Misrepresentation If you misrepresent a fact and that misrepresentation is a material inducement to someone entering into a contract with you then there are a number of problems that follow: The (mis)representation may become a term of the contract and if not complied with can allow the aggrieved party to either sue for damages or rescind the contract. If the misrepresentation led to the contract being entered into by mistake then the contract is void for mistake The misrepresentation may have become a collateral contract an innocent or negligent misstatement may give rise to the tort of negligent misstatement misrepresentation may put you in breach of trade practices statutes. Fraud If you knowingly tell a lie with the intention of receiving a benefit then this is both the tort and crime of fraud. You receiving employment or your company securing a contract probably qualifies as intending to receive a benefit. |
Is it legal for a publishing company to have a name containing "entertainment" in it? Imagine a writer opens a LLC in the state of Wyoming for selling their books on Amazon. Is he allowed to name the company "Horror and Fury Entertainment" (provided there are no other companies named like that)? I'm asking because "entertainment" can mislead people to believe that the company makes movies or video games (as opposed to "Horror and Fury Publishing" or "Horror and Fury Press"). | Yes. There is no requirement that a company name be accurately descriptive. One could call such a company "Horror and Fury Brewing" if one chose to, or "Joe's Eats". Such a name might well reduce book sales, but there is no law against poor business decisions. As long as the name does not violate any existing trademarks, it should be OK unless there is some specific law in the local jurisdiction that regulates company names, which seems unlikely. | A name is not protected by copyright. It can be protected as a trademark, but it would almost certainly be allowed as nominative fair use, since the alternative of indirect descriptive reference ("the grocery store founded in 1930 by George W. Jenkins") is not only cumbersome, but it doesn't even answer the question, where only the name can be used. Trademark protection is not absolute ownership of a word, it is the right to a specific use of a word (e.g. to identify a specific brand of computer for commercial purposes). If you use a trademark symbol, you have to be careful to use the right one (it may be illegal to imply registration by using R when the trademark is not registered). As far as I can determine, there is no obligation for a third party to so mark trademark terms, though it is commonly done. | I only address the core legal question. The first question regards where the review appeared: on the facility's own web page, or on some third party web page? In the latter case, there is the possibility that soliciting a modified review in exchange for something of value violates the terms of usage for that web site. There are also US federal regulations pertaining to advertising, as well as state regulations. The federal regulations are here. The main question is whether what you say constitutes an endorsement, as specified here. They define an endorsement as: any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. The regulation in fact gives some helpful examples (reading them helps to clarify what an "endorsement" is), the last of which involves a dog: Example 8: A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog's fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money. This posting would not be deemed an endorsement under the Guides. Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides. The distinction at issue is whether the suggestion of receiving something of value might influence a person's statements. You can pay for a positive review, as a reward for saying nice things, as long as the reviewer had no reason to think that they would get get something in return for a review. Taking your review to be an endorsement, as required here, Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. The regulation does not require you to reveal every thing that came into your mind in writing the review, but it is pretty clear that suppressing the concern about vaccination paperwork and the star count constitutes a dishonest statement of opinion of the endorser. Material connections must also be revealed: When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed. For example, when an endorser who appears in a television commercial is neither represented in the advertisement as an expert nor is known to a significant portion of the viewing public, then the advertiser should clearly and conspicuously disclose either the payment or promise of compensation prior to and in exchange for the endorsement or the fact that the endorser knew or had reason to know or to believe that if the endorsement favored the advertised product some benefit, such as an appearance on television, would be extended to the endorser In the 7th example under material disclosure, they describe a blogger who received something of value in connection with a review: the blogger should clearly and conspicuously disclose that he received the gaming system free of charge I should point out that these regulations are written by the FTC, and the implied interpretation (such as that the blogger should disclose... with no clearly stated penalty for failure to disclose) is an FTC interpretation. 15 USC 52 prohibits false advertisements for services affecting commerce. This is the jurisdictional aspect of their complaint against Cure Encapsulations, where defendants paid for reviews on a third-party website (this case involves a relationship between defendant and a fourth-party company that apparently hunts for and pays reviewers). This is apparently the first instance in which the FTC has gone against a business for paying for reviews on a third party web site, so it's not a foregone conclusion that they will prevail in court. Still, Chevron deference means that they will probably win at least on the jurisdictional question. The main difference is that in the Cure Encapsulation case, the violation was even more egregious in that the individuals were not even customers, and in this instance the would-(not)-be review was not the honest opinion of the endorser. | Publication after the author's death is still publication. As you can see in this excellent chart this work is copyrighted for 95 years after the publication date under US law. If it had never been published, it would be protected by copyright for 70 years after the death of Lovecraft, the author (a term which has now expired). However, statements of genealogy would be facts, and as such are not protected by copyright. limited quotes to support those facts would be appropriate in a work of non-fiction, and would normally be permitted as fair use under US law. Such quotes would probably not be appropriate in fiction in any case. The exact wording of the genealogy would probably be protected, but not the relationships (who is the parent of whom, etc). | 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". | It is not clear to me how you "use" a mythological entity, and I take no position as to the divine consequences of any unauthorized uses, but you are entitled to incorporate then in your own intellectual creations for two reasons. First, any imaginable copyright on original texts (e.g. the Bhagavad Gita) has long since expired. Not all texts are of such certifiably ancient provenance, so there may be contemporary texts created by a practitioner of Ásatrúarfélagið which is protected. Second, names (Amitāyus, Zaraθuštra, Ngai) are not protected by copyright, so you can use names. | 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. | 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. |
Can an AI own a company? If an artificial intelligence was smart enough to handle all business activity and affairs could it be given ownership of a company? | Short Answer No. An AI cannot own a company. Artificial intelligences are not legal persons. The law recognizes human beings and legally recognized entities as persons. It does not recognize AIs or for that matter non-human species as persons except in a handful of jurisdictions that recognize, for example, some select rivers as legal persons (e.g. New Zealand). Approximate Alternatives Something close would be possible, however. It is possible to establish a non-profit corporation without owners, or to establish a non-profit entity that is not a corporation (often called a "foundation") that has no owners. These entities are required to have humans who serve on a board of directors. But, the nonprofit entity or foundation could have bylaws that delegate decision making responsibility on all or many matters to an AI, in much the way that decision making responsibility of all or many matters might be delegated to the CEO of a nonprofit corporation. While the AI can't own anything and indeed, to the contrary, would be owned by the entity, the AI's actions could cause the entity to earn income, to acquire and dispose of property, and to participate in lawsuits. And, while most non-profit entities and foundations are designed to have charitable purposes in order to garner tax benefits, there are many kinds of non-profits that exist for non-charitable purposes (e.g. country clubs, stock exchanges, HOAs and political organizations). If an AI was vested with management of most key parts of an entity's operations, that entity had no owners, and its board of directors was relatively docile, this would come reasonably close, in practice, to what an AI owned entity would look like. How The Law Could Be Changed Indeed, one plausible form of organization for the AI would be as a political organization which could be devoted to the purpose of reforming the law to give AIs personhood status. If one U.S. state did so, for example, this would allow all AIs to use that state's law to form entities owned by them, that could operate in any U.S. state, since geographic constraints do not really apply to AIs. And, it doesn't take that much money to lobby a single state to adopt a law if there is no obvious constituency to oppose the adoption of the law. Analogous Historical Precedents There are deep historical precedents for allowing people who were not legally allowed to own property to manage businesses. In the Roman Empire, the practice of having a slave operate a business or venture or transaction as an agent of the slave's owner was well recognized. This was also true, to a much narrower extent and much less frequently, under American chattel slavery. In the medieval and early modern era in Europe and in the post-colonial regimes in the Americas, it was not uncommon in jurisdictions that did nt otherwise recognize the right of a married woman to own property or to be recognized as a legal person in a court to be allowed to manage her husband's affairs on his behalf in his absence as his delegate agent to do so (often for long periods of time, for example, when the husband was away at war, and for entire fiefdoms for which the aristocratic husband was the lord). European law also recognized the concept that when a royal or noble title was inherited by an oldest son due to the death of his father, when the son was just a child, that the mother could serve a regent for the son and manage the affairs of the jurisdiction associated with the son's title, even though the mother was not legally permitted to hold that title in her own right. | Every lot on the subdivision is and always will be acquired “through the Developer” Unless the developer still owns it. Somebody is the heir or assignee of the Developer - that’s who you need to seek approval from. Even if the Developer was at some point a company that got liquidated, the right of being the Developer would transfer to the creditors of that company. | It is neither legal nor illegal, but would depend on the circumstances. For example, such use of a smart assistant might be perfectly fine if the childcare provider could demonstrate a legitimate interest for using the smart assistant, and gave reasonable notice about audio being recorded. Parental permission is likely not necessary. In practice, doing this right would be far too much effort. For example: Has the necessary information per GDPR Art 13 been provided, taking into account the EDPB guidelines on transparency? Under what legal basis are conversations sent to Amazon, an US-based provider, taking into account the Schrems II ruling? How will data subject rights be satisfied, in particular the right to access to these recordings, the right to erasure, and the right to object to further processing? Having discovered such processing of personal data that isn't necessarily kosher, a parent/guardian might start by objecting (GDPR Art 21) to further processing. This could be satisfied by powering off the Alexa devices in all rooms where the child is expected to be. The childcare should respond within one month. If no satisfactory response has been received, one option would be to lodge a complain with the supervisory authority, which would be the ICO in the UK. | I don't think the issue is that it is a violation of a law, but rather that it is a violation of the terms of service you agree to when you sign up for the site - which is a breach of contract. You can be sued for breach of contract, if the site can prove any damages based on your breach. So if you use a bot to make money on a site, in violation of the site's license agreement, then I believe the site could indeed sue you to get the money back. Also, the phrasing of your question ("creating a robot") raises a separate issue. It is not actually creating the bot that is illegal, but using it where not allowed can be a violation of contract. Suppose person A makes a poker bot, just as a programming exercise, and doesn't use it. But then suppose person B uses the robot created by person A on a site that forbids it. Although this could be a gray area, I do not believe the site would have any recourse against person A (even though they probably would against person B). | If you are purely a designer (and not contracted for the daily operation of the site), the answer is "no". GDPR Article 4 defines the "roles" responsible for complying with GDPR, and there are two: Controller and Processor. The Controller is the one who calls the shots. In particular: Decides what personal data to process. This is usually the owner of the web site. The Processor is the one that actually does the processing. This is usually some company providing some sort of data processing service (e.g. SaaS, PaaS, etc.). The relationship between the Processor and the Controller must be contractual. The contract is called a DPA (Data Protection Agreement or Data Processing Addendum). As a designer, you don't fit into any of these roles. If your contract with the client is silent on liability for GDPR compliance, then you have no liability. This goes for projects completed both before and after the May 25 deadline. Of course, if there are GDPR clauses in your contract, then you must fulfil them just as have to fulfil any other contractual obligation. But unlike the controller and the processor, there are no automatic legal liability for a designer or programmer. | When a company is bought by another company, then all their intellectual property is usually transferred to the buyer. That means when Adobe bought Macromedia, then all the copyrights to all Macromedia products presumably went to Adobe. So Adobe can take legal actions when you violate their copyright on Macromedia Adobe Flash 8. I said "usually" and "presumably", because there might always be some contract clause in the purchase agreement between Macromedia and Adobe which says otherwise. And that agreement might not be public knowledge. When a company "disappears", then things can get even more complicated. When a company goes bankrupt, then their assets get liquidated. That means everything they own - material or immaterial - gets sold to the highest bidder. Who that bidder is is not always public information. So the copyrights might land somewhere where you wouldn't expect it. In fact there is a whole industry of "copyright trolls" who buy IP from defunct companies just so they can sue anyone using that IP. When a company is dissolved voluntarily, then any of its assets either get sold off to the highest bidder just like during a bankruptcy, or become the personal property of the company owner(s). Who might be private people or a parent company. Sometimes a company might "nominally" go out of business by sacking all employees and ceasing all business activity, but might still exist on paper. That means whoever owns the company could at any time decide to go back into business just to start a lawsuit. In some cases it might be hard to tell what actually happened to the IP rights to a specific piece of software. The information might be in some contract deeply buried in some file cabinet. Or perhaps there is no documentation at all, so finding out who owns what can become an immensely difficult lawsuit. Bottom line: Who owns the copyright on what is not public information. Just because you can't find out who currently owns the copyright to some intellectual property does not mean nobody does. And when you violate their copyrights, that person might suddenly appear with a lawyer and make all kinds of demands, including suing you for statutory damages (which does not require them to prove that you actually caused financial harm to them). | What happens is the same as if you were an employee in the office, staying with the company for another few years. You are an agent for the company, and everything you do is as if the company was doing it (except for extreme circumstances). A company employee broke your laptop. It's the company's problem. They should have insurance for this kind of thing. And they told you to work from home, so if something happened because you are at home, that's the company's problem as well. It could be different if your company had told their employees not to have any fluids anywhere near their computers, and you had acted against this. Or my company doesn't allow me to take my works computer with me on a holiday; if I did without explicit permission and it got damaged, that would be my problem. | Software cannot be patented although it does have copyright. Hardware can be the subject of a patent, however, that would not cover any software aspects such as the programming built into a PROM. While it is possible to render any software into an integrated circuit, practically, anything simple enough to make this feasible is probably too simple to patent. |
Mayor forged hotel receipt while drunk Our mayor forged the name, room number and signature of another councilor on a hotel bar tab. According to a taxpayer funded independent investigation he wrote the room number of the other councilman, printed the other councilor's name and scribbled what appears to a signature. The signature is not legible. This happened in Washington DC during a conference. No criminal charges were made. Is this illegal? What should be done? How do I report this? I don’t have an example of the mayors sober signature. | I am assuming you are not the councilor. Civil matter you have no standing. The councilor does. Maybe the hotel bar does. I can’t think of anyone else who does. Criminal matter If a crime was committed in DC, the DC prosecutor is under no obligation to prosecute it. As a political matter, if you were a citizen of DC you could complain and try to get the prosecutor voted out next election. Political matter As a citizen of your city, it is a political matter: You call your councilman* or any city councilman really and ask them to begin impeachment or whatever similar action you have there. Then next election to try to get the mayor voted out. If you are unsatisfied with the council, try to get them voted out also. The cost of investigation is a cost of running a government. Someone could have chosen not to spend seven grand investigating a hundred bucks, but they did it. *Note this is called petitioning for redress which is the right that the current SCOTUS nominee could not recall off the top of her head. | Probably not There's a difference between knowing DeJoy is guilty, and proving he is guilty. The first is a matter of your personal views on epistemology; the second is a matter of law. The statute says an official cannot use "his official authority for the purpose of interfering with..." In other words, in order to charge DeJoy, the government needs evidence that he is making these changes for the purpose of interfering with the election. According to news reports, DeJoy claims his purpose is legitimate: To balance the USPS budgets. He claims the PO is losing so much money that drastic cuts are required unless Congress increases funding. Given that the USPS is running a deficit, it will very hard to prove that DeJoy's explanation is just a smokescreen, that his real purpose is to screw up the election. So, unless there is a smoking gun, it seems likely he would not be charged, let alone found guilty. Note: Edited for clarity in light of comments | Generally speaking, what isn't illegal by law is legal. It's possible for law enforcement agencies to share crime rates, maps, and their data, but within any laws regarding access and sharing of that data. Such crime data may be publicly available, but that depends on local and state laws. The local or state agency would have to enter into a legal licensing agreement - if local and state laws allow such sharing - with the GPS company to provide the data, update it, and reasonably assure that it is accurate. The more realistic reason GPS systems might choose to not show crime data may be public relations. If a GPS user lives in an area that has been objectively identified by data as having a higher than baseline crime rate, i.e. for carjackings, that user may not be very happy with that designation. Worse, what happens to public relations when data errors show an area is wrongfully identified as high crime? What kinds of lawsuits could result? Real estate agents suing since bad data from a GPS unit soured the sale of a house? | 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). | The date and location of the signature merely documents when/where the signature was made, and doesn't have a lot of legal significance for ordinary contracts. This information is probably only useful if you need to argue that you could't have signed the contract because you weren't in that town on that day. Despite this small lapse your contract is perfectly valid, in particular you are required to make any payments that are part of this contract. It doesn't make sense to get this corrected. However, if any actual information (for example, you address) changed, then you should notify the gym to update the information. | Possibly: remember that we have 50 different states and their laws plus the federal government. Alabama criminal code §13A-9-9 define the crime of "possession of a forgery device", which is when one makes or possesses with knowledge of its character any plate, die or other device, appliance, apparatus, equipment or article specifically designed or adapted for use in forging written instruments with intent to use it himself, or to aid or permit another to use it for purposes of forgery. Selling is covered under the fact of possession. Arizona has a similar law, referring to the situation when a person Makes or possesses with knowledge of its character and with intent to commit fraud any plate, die, or other device, apparatus, equipment, software, access device, article, material, good, property or supply specifically designed or adapted for use in forging written instruments. Makes or possesses any device, apparatus, equipment, software, access device, article, material, good, property or supply adaptable for use in forging written instruments with intent to use it or to aid or permit another to use it for purposes of forgery. Federal law would be covered here: §474 covers any plate, stone, or other thing, or any part thereof, from which has been printed, or which may be prepared by direction of the Secretary of the Treasury for the purpose of printing, any obligation or other security of the United States, uses such plate, stone, or other thing, or any part thereof, or... but this could not be reasonably interpreted to include a printing press, and would not cover a gadget that forges passports (Dept. of State, not Treasury). There isn't a federal statute with the breadth of the Alabama law. Any such law would have to include an "intent to forge" element. | Am i going to jail? I'm so scared. No, probably not. The details depend on jurisdiction, but normally the only crime you could be accused of would be that of forgery. However, forgery by definition requires an "intention to deceive". So my personal advice would be to come clean immediately: Go to your employer, and tell them you did not understand the checkout system and accidentally signed yourself, instead of having the customer sign. If you do that, what you did would not count as forgery, because (as you explain) you did not do it on purpose to trick someone. Now, your boss may still decide to discipline you in some way, maybe even fire you, but that's out of your hand. If they are reasonable, they'll hopefully understand a minor mistake on the first day. That said, it is possible your jurisdiction has special penalties for incorrectly filling out medical documents, so there may be more to it - but I doubt it. To be sure, try asking someone you know and trust who is familiar with the legal rules around medication. Or book a single consultation with a lawyer - this is not cheap (typically around $100 in the USA, or 100€ in the EU), but will give you peace of mind. You could also try asking around if there is a local initiative which offers legal help, possibly a professional organization or trade union. | If a candidate chooses to sign by simply typing their name as shown (as an example) in the first and second photos, they'd obviously have to stick to the same name and font when signing the contract and non-disclosure agreement. This assertion is incorrect. But what repercussions would it have in future? If the candidate has to sign any more company documents much later (signing physically with a pen on paper or even signing electronically), would it have to match with the signatures that were first made in the offer letter? No. Or would commonsense be accepted, that the signature is basically the candidate's acceptance of the terms of the agreement, and that the signature can vary? Yes. A signature is ritualized way of showing legal agreement. The content of the signature does not impact its legal validity. For example, it used to be commonplace for illiterate people to sign contracts, wills, and other documents prepared by someone else and read to them with an "X". So long as a signature is made by the person who is supposed to be signing it with an intent to legally agree to what they are signing, it is a valid signature. When a signature is obtained in a manner that does not reflect the intent of the person signing it to legally agree to what they are actually signing, that is a special category of fraud called "fraud in the factum". For example, substituting a deed to a house from a receipt for a package delivery at the last moment when the person signing it doesn't notice the switch, is "fraud in the factum". A court's conclusion that there has been "fraud in the factum" has the legal effect of causing the document signed to be treated as if it was never signed at all. In contrast, different legal consequences are present when someone signs a document, knowing what they are signing, for reasons that rely on false statements that have been made to them, which is called "fraud in the inducement." If someone tries to enforce an agreement that purports to be signed, and the person who allegedly signed it claims that the signature was forged by a third-party, inconsistency between the signature and other times that the person who allegedly signed something did so is evidence that the signature is a forgery. But it is not conclusive evidence. People's signatures change over time for a variety of reasons, sometimes dramatically in a short period of time, for example, in the case of a stroke or a hand injury. When signatures differ over time and there are allegations of forgery, then it is a question of proof for a finder of fact (i.e. a judge or jury) to decide if the alleged forgery is really a forgery. Many businesses that routinely accept small dollar value personal checks, for example, also take a thumb-print of the person signing the check in order to make it cheap and easy to litigate the question of whether a signature on a check is forged, and to discourage litigants from falsely claiming that a check was forged in the first place. This practice was established because lying and claiming that a check was forged used to be a tactic that was used on a recurring basis in civil cases and in criminal bad check passing prosecutions to escape liability. |
At what point does an AI become a person? When is a fully autonomous machine that can communicate with society and think for it self become classified as a being that can "own" property and manage others? Also, do they have certain rights at that point? I understand we may not be this far in the future but I think it is possible as time goes on. | As of present moment, under no circumstances. That said, the law may and probably will change around that. But the time has not come just yet. Trying to predict what the law will be is out of scope of this site. | That's an old idea that has been tried several times before (such as the first, being Unvarnished: Website Lets You Review People (And Trash Them) | HuffPost, which no longer exists); and one of the latest incarnations is Peeple (mobile application - Wikipedia). There are lots of legal liabilities, including defamation and harassment/stalking, even with the Section 230 of the Communications Decency Act | Electronic Frontier Foundation which (mostly) protects the website owner from others' speech posted on the site (your mileage may vary due to jurisdiction). The only way such a site would survive is to do what Peeple and other sites have done: greatly limit the speech allowed, such as limiting to only positive reviews, giving the subject complete control over what does appear on their profile, only allowing "opt-in" profiles, verify identities, etc. You would have to implement full GDPR compliance; but various lawsuits will either shut you down before you get far enough to launch or soon after and force you to greatly limit the scope of the site. Most lawyers would advise you to find something else to do with your time and money. | 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. | Boggs v. Merideth was a pretty big case involving private drones and the privacy of neighbors. Happened in Kentucky, though. I would suggest taking a look at that. | Can you unambiguously, legally, and conclusively determine what is and is not a "porn site"? I'm sure many are easy... but what about that "Swimsuit modeling" site, or the "Artistic Nudes" site featuring classic French Renaissance paintings? There will always be a grey area. What makes a "site" in a legal sense? Consider all the blog sites filled with user generated content: If just a few pages out of tens-of-thousands are hardcore, indisputable porn, would you require the entire domain to be classified XXX, even if 99% of its content is completely innocent? Who would enforce this? Are you proposing an "Internet Police" force to review all new domain names and their content before they get approved? That is called "Prior Restraint on Free Speech", and is established law. Suppose a site does get approved, then immediately changes the content of their pages from Cooking Recipes to hard-core porn. Who is going to review and approve every update to every website, when sites are updated constantly?! Maybe you're proposing that any individual who finds porn on a .ORG site has the right to sue for damages? This would likely clog the courts with endless vigilante lawsuits about what content belongs on which domain. This is a flat out horrible, poorly thought out idea. | The GDPR actually does require you to follow DNT in Article 21: In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise his or her right to object by automated means using technical specifications. I think this is quite explicit. | I think there's a reasonable argument to be made. ADA requires reasonable accommodations for disabilities, but there's always going to be a fight over what is reasonable. What's pretty clear, though, is that the museum is not required to make accommodations that would "threaten or destroy the historic significance of an historic property." So they'd have to think about what accommodations they can make without endangering the exhibit. To me, anyway, asking to walk up and touch it with gloves sounds reasonable; asking them to build scaffolding so you can touch every inch of it that others can see does not sound reasonable. But I'm not a conservator. It may be that even a gloved hand would endanger the exhibit. If that's the case, the accommodation is probably not a reasonable one, and you'd probably need to think about other possible compromises. | As edited, this asks two different questions: Is it legal to have a religious belief that killing mutants is a moral necessity? Is it legal to preach a religious belief that killing mutants is a moral necessity? The answer to the first question is pretty clearly yes. Your right to think whatever you want is essentially ironclad under the First Amendment, under both the Free Exercise and the Free Speech clauses. The answer to the second question is more nuanced. Although it can be tricky to actually apply, there's little question that merely advocating for murder is generally protected under the First Amendment: The teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future Noto v. United States, 367 U.S. 290, 298 (1961) Over time, the courts have developed a two-part test for evaluating whether the advocacy of crime can itself be criminalized. We now assume that speech advocating for the commission of a crime as protected under the First Amendment, unless and until that speech is: (1) intended to cause imminent lawless action; and (2) likely to actually result in imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444, (1969). So if Rev. Stryker meets Charles Xavier for a televised debate on the merits of killing all mutants, that speech would likely be protected by the First Amendment. Although he may sincerely hope his words will inspire others to kill mutants, the time between speaking them and any resulting murder is too great to say they are either intended or likely to cause imminent lawless action. But if the X-Men confront Rev. Stryker on television, and Rev. Stryker urges his studio audience to storm the stage and kill them all, that's more likely to result in immediate violence, and therefore more likely to be considered unprotected incitement. There's of course a lot of middle ground between those two options, so the tough part for judges and juries is figuring out the speaker's actual intent and how imminent is too imminent. |
What are the criteria for a law to be unconstitutionally overboard when not related to speech In my municipality, it states that to qualify as an animal "attack" that Actual physical contact is not required to constitute an attack." Per § 8.04.045 and that it is merely enough for a an individual to be "worried" according to § 8.24.030 (A) In this statute "Worrying" includes any animal that may be ...approaching any person in an apparent attitude of attack or any aggressive behavior which would cause a reasonable person to feel they were in danger of immediate physical attack. This statute seems highly based on the perception of the victim. It seems that anyone with Cynophobia, the most common phobia (with 36% of patients with phobias presenting with this Cynophobia and only 12% to 30% of those Cynophobia seeking treatment clinical treatment) might perceive any scenario, especially scenarios with larger animals to "feel they were in danger of immediate physical attack". This could occur if a dog is fenced in, if the dog is leashed, or if the dog is just excited to meet a new friend and wants pets. How might the overbreadth doctrine apply or not apply in this scenario given that this is not a situation involving free speech. What legal tests would/could/should be applied to test the constitutionality of this statute? | This is an objective test When a law requires “worry” (or any other state of mind), it is usually not the state of mind of the particular person but of a reasonable person in the same circumstances. The law does not ask “Were you worried?”, it asks “Would a reasonable person in your situation have been worried?” The fact that you have cynophobia is irrelevant if a reasonable person in your circumstances would not have it. Now, if this occurred at a facility for cynophobia treatment then the circumstances change from a reasonable person taken from the general population to a reasonable person who is attending such a facility; in those circumstances the reasonable person would be someone suffering from cynophobia. By the way, this test (worry or fear of harm) is essentially the same as the criteria of assault between humans. | That statute, which was struck down by the Supreme Court in US v. Eichman, 496 U.S. 310, does not define desecration. Case law on point is not forthcoming since there is no enforceable law on the topic and as long as the First Amendment holds, we can't test laws prohibiting flag desecration. The general meaning of the word is to treat disrespectfully, irreverently, or profanely, and that clearly is not the case in the present usage. A different statute yet to be written might outlaw "any modifications of the flag" (and would suffer the same fate as 18 USC 700), which could be technically violated in the application of a thin blue line to a flag. | No. I can't give a more detailed answer without reference to a specific statute. But just about every state anti-bullying statute in the U.S. restricts the definition to...well, bullying. There is a good summary of state bullying and cyberbullying statutes here. The laws are varied, but they invariable contain words like "harassment", "abuse", "threatening," "fear," and "hostile environment." Would it be possible to "cyberbully" someone on Stack Exchange under some of these statutes? Sure. You could do it in comments; in answers; even in questions. "Question: Is Bill in my algebra class a dork, or a tool?" Comment: "This is a terrible question, and I'm going to burn your house down. Downvoting." You could probably fit something like that under some of the broader statutes--although they still for the most part haven't been tested for First Amendment issues. But I don't know of any statute broad enough to include downvoting a question or answer, on a site people post on knowing that the whole purpose of posting is to allow their posts to be upvoted and downvoted. If there was such a statute--and again, I don't know of any--it would almost certainly be unconstitutional. There is no law against hurting people's feelings, at least in the United States, and a law that allows people to seek legal redress for someone saying "I disagree with you" is pretty much the poster child for a First Amendment violation. | Subsection (3) of The Domestic Abuse Act (Scotland) 2018 defines abusive behaviour as: (a) making B dependent on, or subordinate to, A, (b) isolating B from friends, relatives or other sources of support, (c) controlling, regulating or monitoring B’s day-to-day activities, (d) depriving B of, or restricting B’s, freedom of action, (e) frightening, humiliating, degrading or punishing B. and also In subsection in paragraph (a), the reference to violent behaviour includes sexual violence as well as physical violence, So there are some jurisdictions where the examples you list are illegal. EDIT: I'm not a lawyer, so can't provide much more insight into the evidentiary requirements of this Act. The Assistant Chief Constable of Scotland was quoted as saying that law officers and staff have "received further training on the dynamics of power and control in abusive relationships to help recognise the signs, identify investigative opportunities and to tackle the myths and misconceptions of abuse that still exist.", but no indication of what that amounts to in practice regarding evidence thresholds. | To start off, you appear to be confusing assault and battery. Assault does not require physical contact in order for it to occur. Verbal assault is still a crime, but in your situation it doesn't appear that any verbal assault has occurred - he is not actively threatening you with harm, and you are not in fear of being harmed. Yelling can sometimes qualify as verbal assault, but any form of verbal assault is very hard to prove because it leaves no evidence. Unless someone other than the two parties involved comes forward, it likely won't go anywhere. Assuming this has been going on for some time, what you appear to be experiencing is harassment which usually qualifies as a civil matter, and police will not take any action other than asking one of you to leave in order to resolve the issue. Most often, they will ask you (as the person being harassed) to leave, but that can also be in your benefit. If you can prove the other person's harassment caused you to have to leave in order to be comfortable again, then you can claim damages and can sue that other person for the harassment - basically suing for damages of not being able to live in and enjoy your residence which you pay for, as well as any additional costs you encountered by having to find an alternate place to live because of their actions. Again, this is difficult to prove without someone else who has witnessed the continued harassment stepping forward (e.g. your guest who might have only witnessed it once is probably not an incredibly strong witness, because harassment is often defined as having persisted over time, and they cannot testify to more than what they saw in one night). The case would likely just devolve to a matter of "he-said" between the two of you - he will likely claim you just didn't like him and are making things up to get money out of him. You'd need to make sure you have other evidence that supports your side of the story. As far as claiming self-defense, my completely non-legal and mostly combination of "I wish this were common sense" and "I hate when people try to justify unneeded violence" advice is never rely on the self-defense plea. Unless you are in fear of your life, your best course of action if he threatens violence or actually hits you is to leave and let the police handle it. If you have physical marks on you and he has none on him, the case becomes much more clear-cut. If you fight back, and you both have marks, then it again becomes a case of "he-said" and it's hard to prove who initiated the confrontation without cooperating witnesses, and you'd likely both end up being arrested when the police showed up if they can't determine who the instigator was. Just because you know something was in self-defense doesn't necessarily mean the police, a judge, or a jury will believe you. Ultimately, if you're uncomfortable with the place you're living, you should start planning to move elsewhere immediately (which you appear to be doing). If you can both a) avoid financial damages to yourself by preventing yourself being put into a situation that requires you to move quickly without much planning and b) prevent the continued harassment - then you should. Don't let the pot just keep boiling over until it explodes all over the kitchen. You have the power to make this stop too, and you shouldn't rely on other people making the situation go away for you (e.g. your landlord is bound by a contract, and evicting a tenant based on your word can open them to a lot of legal troubles - they have to be very careful with how they handle such a situation). Yes, it sucks that it's not your fault you have to go through the extra effort or move away to resolve the situation, but getting yourself out of the situation should be your number one priority, and doing it yourself is often the easiest solution. | In general, the law is not based on the species, it is based on the use of the animal. This gives rise to the difference between food rabbits and pet rabbits, and so on. The definition or applicable offenses are spelled out in each state's criminal code. In Washington, Chapter 9.08 RCW covers "Crimes relating to animals", and 16.52 RCW covers "prevention of cruelty to animals". 9.08.065 defines a "pet animal" as a tamed or domesticated animal legally retained by a person and kept as a companion. "Pet animal" does not include livestock raised for commercial purposes and then makes it a crime to steal a pet animal (this is in addition to regular laws against theft that applies to any property). So if you steal someone's pet goat, that's two or more crimes, but if you steal a meat goat, that's one less crime. The main anti-cruelty laws are in 16.52. Distinctions may be made between between domestic animals and generic animals, or between livestock and others, or food animals and others, so it just depends on the action being forbidden. RCW 16.52.205 says you commit first degree animal cruelty if you intentionally (a) inflicts substantial pain on, (b) causes physical injury to, or (c) kills an animal by a means causing undue suffering or while manifesting an extreme indifference to life, or forces a minor to inflict unnecessary pain, injury, or death on an animal. There is no other provision allowing you to torture any animal, not even a backyard rat. It is generally illegal to poison animals, but RCW 16.52.190 allows euthanizing by poison, or pest-eradication by poison (insects are animals too). Thus it is legal to poison a pest rat but illegal to poison a pet rat. There is also a general exception, in 16.52.180, that No part of this chapter shall be deemed to interfere with any of the laws of this state known as the "game laws," nor be deemed to interfere with the right to destroy any venomous reptile or any known as dangerous to life, limb or property, or to interfere with the right to kill animals to be used for food or with any properly conducted scientific experiments or investigations, which experiments or investigations shall be performed only under the authority of the faculty of some regularly incorporated college or university of the state of Washington or a research facility registered with the United States department of agriculture and regulated by 7 U.S.C. Sec. 2131 et seq. This allows you to kill chickens for food, and might be construed as allowing you to feed rats to your snake (the law does not say "used as food for humans"). The definition of 1st degree cruelty also has an exception that "Nothing in this section may be considered to prohibit accepted animal husbandry practices" (however, keeping an animal as a pet or educational object does not constitute "animal husbandry" in the ordinary meaning of words). There is no clear statutory division in Washington between feeding rats to reptiles, and feeding dogs to reptiles, and if you were to feed kittens to your monitor lizard, you might well get arrested. Idaho animal cruelty law also forbids cruelty to any animal: Every person who is cruel to any animal, or who causes or procures any animal to be cruelly treated, or who, having the charge or custody of any animal either as owner or otherwise, subjects any animal to cruelty shall, upon conviction, be punished in accordance with section 25-3520A, Idaho Code. and cruel(ty) is (a) The intentional and malicious infliction of pain, physical suffering, injury or death upon an animal; (b) To maliciously kill, maim, wound, torment, deprive of necessary sustenance, drink or shelter, cruelly beat, mutilate or cruelly kill an animal; (c) To subject an animal to needless suffering or inflict unnecessary cruelty; (d) To knowingly abandon an animal; (e) To negligently confine an animal in unsanitary conditions or to negligently house an animal in inadequate facilities; to negligently fail to provide sustenance, water or shelter to an animal. Again, feeding a rat to a snake is not intrinsically malicious, nor is feeding a puppy to a turtle intrinsically malicious. A distinction can be made under the related law on torturing a companion animal (an extension of the original anti-cruelty law): A person is guilty of the offense of torturing a companion animal if he tortures a companion animal as defined in this chapter. where "companion animal" is defined as those animals solely kept as pets and not used as production animals, as defined in this section, including, but not limited to, domestic dogs, domestic cats, rabbits, companion birds, and other animals. This gives a basis for distinguishing feeder rats from feeder puppies. Torture is then defined as the intentional, knowing and willful infliction of unjustifiable and extreme or prolonged pain, mutilation or maiming done for the purpose of causing suffering. "Torture" shall not mean or include acts of omission or of neglect nor acts committed unintentionally or by accident. "Torture" also shall not mean or include normal or legal practices as provided in section 25-3514, Idaho Code. And thus it is not clear that feeding an animal to a turtle counts, since the purpose is to feed the turtle, not to cause suffering. The exceptions spelled out in 25-3514 might be applicable, but there are not clearly applicable. One exception is "The humane slaughter of any animal normally and commonly raised as food, for production of fiber or equines" – perhaps using an animal as feed for another animal can be "humane slaughter", perhaps rats are "normally and commonly" raised as food, unlike dogs. It is not currently against federal law to slaughter cats and dogs for meat, but there is a bill in Congress which would make it so. The bill has 245 sponsors in the House, so it is likely to pass. | One could make a First Amendment challenge to mask requirements through either the Free Exercise Clause or the Free Speech Clause. Neither approach is likely to succeed. Because going without a mask is not recognized as "expressive conduct," it is not protected by the Free Speech Clause A free-speech challenge would likely also fail for two reasons. As you correctly suggested, the First Amendment protects more than just speech, also protecting "expressive conduct," such as flag burning, dancing, and wearing armbands. Of course, literally any conduct could have some secret expressive meaning in the mind of the person carrying out -- "I shot him in the face to say I didn't like him" -- so we have a question of where to draw the line between what expressive conduct does and does not receive the strong protection the First Amendment affords to speech. The Supreme Court detailed that test in Texas v. Johnson, 491 U.S. 397 (1989), and it's now generally formulated as asking two questions: Did the speaker actually intend to convey a particularized message through his conduct? Are the people who see the conduct likely to understand that message? At the Sturgis rally, or at the statehouse protests over COVID restrictions, or some similar event that is explicitly opposed to masks, refusing to wear a mask goes a long ways in communicating an opposition to the mask requirements. But in the vast majority of cases, no one you run into in the normal course of daily life is likely to recognize that you are not wearing a mask because you are trying to communicate a message, let alone decipher what that message is. Do you believe that mask mandates are tyranny? That COVID-19 is a hoax? That life is meaningless and we should all welcome the hastening of human extinction? None of that is clear to the average viewer, which is who the courts are going to be concerned with. Because refusing to wear a mask is generally insufficient to convey a specific message, I'd argue that it is not expressive conduct. Because mask requirements are neutral as to religion and generally applicable, they do not violate the Free Exercise Clause. A religious challenge ("My religion prohibits wearing masks") is likely to fail because "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" Employment Div. v. Smith, 494 U.S. 872, 879 (1990). This means that if the mask ban generally applies to everyone and you just happen to belong to a religion that forbids mask-wearing, you can't use that affiliation to escape the law's requirements. (The outcome may be different when you run the problem through the Religious Freedom Restoration Act or state-level analogues, which impose more stringent tests for infringements on religious liberty.) | There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection. Specific Rights Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice. Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do. Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws. Rational Basis Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional. If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed "fundamental" are normally tested under either strict or intermediate scrutiny. According to the the Wikipedia article: Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. ... laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review. ... In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. ... A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur. (See Killian, Johnny H., George A. Costello, & Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635) Rational Basis analysis became accepted after the demise of "substantive Due Process", mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York * In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing: [A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Specific cases In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny. In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright." In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned.. Vagueness Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness. Procedural protections Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges). Other Limits There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones. |
Do licenses created by a company dissolve, void, or simply invalidate if said company bankrupts / sells assets? So I made a previous question about a dissolved or possibly bankrupted company that I wanted to use assets of for a fan-made remaster / remake of their game. The said company has given access to their art / assets under this agreement: This Fan Kit License is an agreement between you and Bytebin LLC. By accessing or using the Fan Kit, you agree to be bound by and comply with the terms of this License and the Deepworld Terms of Service (http://deepworldgame.com/terms). Deepworld has an amazing community and we wish to allow our players to be as creative as possible when sharing Deepworld experiences, information, and opinions. We encourage you to use the Assets contained within this Fan Kit to enliven any Deepworld-related websites, Facebook pages, apps, or other online spaces ("Fan Sites"), as long as it is in accordance with this License. If you violate the agreement, we may contact you and try to resolve the matter, or pursue legal action if we are unable to come to a resolution. Bytebin may, in its sole discretion, terminate the right to use the Fan Kit for any reason whatsoever with or without notice. USAGE Bytebin grants you a limited, non-exclusive, non-transferable, revocable license to use the Fan Kit solely for the purpose of enhancing Deepworld-related topics on your own Fan Sites. RULES You are not permitted to charge a fee to visit, use, or acquire your Fan Site. You are not permitted to sell any products that feature any of the assets, including those you have made alterations to. You ARE permitted to monetize your Fan Sites with advertisements. If you monetize with advertisements, you are not permitted to use or display any of the Fan Kit assets in your advertisements or imply that Bytebin sponsors your Fan Site. You are not permitted to manufacture or distribute physical items such as T-shirts that bear any Deepworld trademarks or assets. You may make modifications to the assets, but Bytebin still retains full ownership and copyright of your derivative works. Alteration does not change any of the other stipulations of this License. All Fan Sites must include a Bytebin copyright and agreement notice: "Deepworld assets are Copyright 2014 Bytebin LLC. Bytebin is not affiliated with and does not endorse, sponsor, or specifically approve this site." Bytebin reserves all rights not expressly granted in this agreement. I want to know if a license is upheld, even if a company goes bankrupt, or is dissolved. Are said licenses transferred if the assets are sold? I noticed this specific line in the license: Bytebin may, in its sole discretion, terminate the right to use the Fan Kit for any reason whatsoever with or without notice.` Which I'm assuming in layman's terms means "We can cancel your right to use the assets at any time, with or without notice" Although we never DID receive notice, I still don't think they ever "terminated" the license, it was part of a fan kit available to community to use in Websites and Games. (Art and assets) I'm not super focused on the details of this specific license (Although that would be nice to know about), Im more solely curious about how this license functions after the company is dissolved. Assuming since the dev team and founders have terminated all social accounts and the company ran out of money to host servers, it seems they went bankrupt. However, I have not found any account of a new shareholder or owner of the assets, its highly unlikely they sold the assets, they most likely split it up between the different artists and the developers of the game. And assuming all of that together, the company still technically exists, as its members are still "in contact" and still own the game and its assets, is it possible I can still "use" this license in a legal environment to some extent? I highly doubt this license allows for the creation of an entire game with original art, or even an app, it seems to mainly focus on using the art in Websites. What can you guys tell me? | Bankruptcy does not normally end a contract Of course, bankruptcy may cause the bankrupt to breach the contract because they can’t fulfill their obligations allowing the other party to terminate it. Assuming this doesn’t happen, a contract is both an asset and liability of the bankrupt company in that they create both benefits and obligations. As such, it must be dealt with by the bankruptcy trustee like all other assets and liabilities. This particular contract creates a liability on the other IP assets of the company and, in a sense, is part of those assets. So, whoever ended up with those assets has them encumbered by this license (whether they know it or not). If those assets were sold then the buyer is bound, if they were distributed to the creditors or shareholders then they are bound. | What are exactly the legal consequences of "All rights reserved"? Almost none. You have to explicitly grant copyright rights. You don't even need the Copyright notice for them to apply. My "almost" is because the notice makes it harder for somebody to argue "they didn't realize". Do I still need an additional SW License Agreement or is the Copyright notice above + a Disclaimer of liability sufficient? If this is free software (I know you said it isn't), do yourself (and everyone else) a favour by picking a license you like. Preferably either GPL or MIT (depending on your taste). There are far too many free licenses already. Please don't add another. (It also makes it much easier for any user of your software: "Oh yeah, GPL v2. We understand that. We can use it." as opposed to "What are the implications of using this one??" As this is not free software, I think you need a paid-for lawyer (who understands IPR in your juridiction.) Edit: In principle, I believe you don't need anything. The code is copyright, so the customer can't do anything with it (without explicit permissions that you haven't granted). However if the customer doesn't realize that or thinks you won't mind, you then have to go to court to enforce your rights (and probably end up with a disgruntled customer). A short, clear, license will make it clear to the customer what they are allowed to do, and save all that aggravation. | Most games have a TOS to playing that include provisions such as sales of in game items through out of game currencies (i.e. real world money changes hands for digital product or account). I believe Pokemon does have this as part of the TOS which could get you and potential customers banned from competition and possibly the modern online trade features, but am unable to look at the current TOS to verify. It should not be hard to find such a document and read for yourself. | Since the Steam ID contains or may contain enough information for it to be possible to link your account to you as a physical person, it would definitely be considered "personal data" according to Article 4 of the GDPR. However, by agreeing to the DOTA2 terms of service, you have given consent for them to show your information to other players (or at least that is included in most terms of service I have read for other games. I have not read the one for DOTA2 specifically). Replays are an interesting corner case. If download of replays are only possible for other players or if the wording of the ToS says that you consent to displaying your user ID to anybody, that would mean that they would have covered their bases. As long as they comply with other parts of GDPR, like "the right to erasure" (Article 17) that is. If the API is accessible to anyone and not covered by the ToS you might have a case. If you only want to remove the traceability between you and the replays, you can always evoke Article 17 and delete your account. | Just assuming for the sake of this particular answer that everything happens in the U.S.: I'm not sure about the particular example of Open ZFS. The registration in the USPTO Records is in Oracle's name. Using OpenZFS for distributing the same kind of software as the now closed-source ZFS would seem to be infringing to me absent a license. Maybe Oracle just tolerates the use of the "ZFS" component by third-parties since they decided at some point to license the software under an open source license. In that case, they may have a dilution (http://www.inta.org/TrademarkBasics/FactSheets/Pages/TrademarkDilution.aspx) problem and the mark may be invalid. If the mark is invalid, anybody can pretty much do whatever they want with it. That said, assuming for sake of discussion that the mark is valid, there is indeed such a thing that is similar to the copyright fair use in trademarks (in the U.S. at least). It's called "nominative fair use". You can read more about it here: http://www.inta.org/TrademarkBasics/FactSheets/Pages/FairUse.aspx Bottom line is that under the nominative fair use doctrine it's generally ok for party A to use party B's trademark to refer to whatever party B is doing, even to sell products and services related to whatever party B is doing. As per the INTA document I just linked above, its for example ok to "use “iPhone” in non-stylized form on packaging for phone cases to indicate that it is usable with iPhone 6." Having a website (even with third-party ads) that discuss ZFS-related matters is similar to the iPhone example in my mind. Having a domain name that contains the mark seems riskier, but it's not necessarily downright forbidden. See: http://itlaw.wikia.com/wiki/Toyota_Motor_Sales,_U.S.A._v._Tabari | Ownership is a fundamental concept in property law which can be difficult to apply to software, such as computer games. A physical record of information, such as a game disc, a piece of paper with a product key on it, or a computer hard drive with software installed on it, is personal property (chattels). You own these things. However, copyright law restricts what you can legally do with them. For example, the copyright holder generally has the exclusive right to make a copy of a program, which would generally include downloading (and saving) a game ISO. In recent decades, anti-circumvention provisions have been added to national copyright laws. These generally make it illegal to use cracks and other techniques for circumventing DRM, even if you “own” a copy of the software. What is “owned” is the right to assert a claim in court (a chose in action), which is also a kind of property. Specifically, the right to use proprietary software, or software license, is generally understood as a bundle of contractual rights, often documented in an end user license agreement. (While these contractual rights are a kind of property that can be owned, “ownership” of software can also refer to the rights of the copyright holder, which the more limited rights of a licensee are derived from.) Actually determining the legal effect of a software license is complex. As it is intended to create contractual rights, the terms of the contract (license agreement) are important, but not determinative. Consumer law may impose standard “fair dealing” terms which could have complex effects on the rights associated with a digital product in a particular jurisdiction. Because of the low money value involved, these complex legal issues are rarely tested in court. The specific questions you pose all appear to breach copyright or anti-circumvention law. However, you may have acquired contractual rights, including implied rights associated with your purchase of chattels, or dealings with a platform operator like Steam, which limit the copyright holder’s ability to take action against you. You may also have the right to do things that fall within a fair use or fair dealing exception in your jurisdiction. Again, the law is often untested, especially outside of the United States, because it is rarely in the parties’ interest to litigate. However, the exceptions to anti-circumvention law are often different to, and less permissive than, the exceptions to copyright. To further research your questions in a particular jurisdiction, I would look for exceptions to copyright and anti-circumvention law which protect consumers’ rights, if any, to back up or resell copies of licensed software. | There are 95 Jedi trademarks on file. Tons of them are dead. The word "Jedi" itself is trademarked by Lucasarts (a subsidiary of Disney) under Registration Number 3794988, listed for print products and clothes, 2858244 for digital mediums, 2595365 for toys, 2823661 for entertainment services. Now, most jedi marks are Lucasarts, but not all. Serial 88625298 was "Jedi Ooolong", filed by Kombucha tea, which did get processed, filed and a denial/request for an amendment was sent back, and 6 months later the mark was canceled for non-answering. The request contained this line: Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No. 5581531. Trademark Act Section 2(d), 15 U.S.C. §1052(d); see TMEP §§1207.01 et seq. Registration number 5581531 is/was "The Last Jedi" for juices, the rest of the document goes over why it is denied. Serial 88672347 is "Gediforce" for "Downloadable computer programs for data processing; downloadable computer programs designed to estimate costs and health impact of various gestational diabetes mellitus medical screening choices" - and this mark exists since about 2012 in Denmark and 2019 in the US, and granted this April. No conflicting marks. Serial 90150034 is "Chris Jedi" owned by a music label for music, clothes, and entertainment services - recently filed but not yet granted or even given to an examiner. | In general, unless the license contains a clause which allows it to be modified at a later date through some defined means (publication, revocation of existing license etc) then you are free to continue to use the existing version of the software under the original license terms. So make sure you pin your versions! Look out for clauses such as exists in the GPL which allow the recipient of the distributed binary or code to choose what version of the GPL to apply if the original author does not state (GPLv2 Clause 9) as they then allow recipients to bind you, the distributor, to versions you might not agree with (eg the switch to GPLv3 with its patents clauses). |
Right to be forgotten in US legal system. Practical approach for erasure? As it commonly known, the right to be forgotten is a fundamental right in the modern informational society. It is the right of an individual to obtain erasure of his personal data from the online and offline directories immediately upon request without undue delay. The perfect example of implementation of this fundamental rule is European GDPR rules which clearly state principles and obligations in Article 17 and recitals 65 and 66. Everybody working in EU and EEA areas is obliged to abide this law and individuals have tools and mechanism to prosecute legal entities that break these regulations. What about US? Is there any similar law within US legal system which I can use effectively to push for observance of my right to forget? I.e. to push websites, web-services and other online/offline entities to delete my personal data. Is there any way to punish them by law if they deny to do that? | In the broad sense encoded in EU law, there is no right to be forgotten in the US. Certain rights recognized in the Constitution, in particular in the Bill of Rights, which prohibit various government actions. The Constitution also gives Congress the specific power to regulate interstate commerce, which has been used to limit individual freedoms (such as the right to grow wheat). In deciding if a law limiting freedom is constitutional, the courts will apply the standard known as strict scrutiny in deciding, when a law restricts a fundamental right (such as the right to free speech). The requirement for passing such scrutiny are that the law is needed for a compelling state interest, it is narrowly tailored, and uses the least restrictive means to do this. There is no such law encoding a supposed "right to be forgotten", although in certain circumstances one might sue for damages over an invasion of privacy, usually broken down into intrusion of solitude, appropriation of name or likeness, public disclosure of private fact and false light. A requirement to delete a person's posts or posts about a person, or records of transactions would not fall under these categories. The simplest answer to the question is, there is no such law, and it is hard to see what law could be constructed that is consistent with US Constitutional protections of individual freedoms. | 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. | If person A deletes their account would that mean that person B no longer can view the email sent by person A? No. Person B's inbox implies overriding legitimate grounds that limit person A's "right to be forgotten". See article 17.1.(c) of the GDPR. Furthermore, item 2 of article 17 is not applicable because the email service did not make A's personal data public. The email service merely sent to B the record with which A unequivocally addressed B. This means that the email service does not even need to notify B regarding A's request for erasure. All the email service needs to do is remove A's account pursuant to A's request. | There are two relevant bodies of EU law to consider here. The GDPR covers processing of personal data. Personal data is any data where the data subject can be identified directly or indirectly. The ePrivacy directive is also relevant, and covers how you may access and store information on the user's device. Directives are not directly applicable law. Instead every member state translates the directive into national law. In the UK, ePrivacy is implemented by PECR. Is the data you collect personal data in the sense of the GDPR? Yes: that hashed unique device ID or a system-provided advertising ID likely is personal data, and any linked data would then be personal data as well. This is going to be the case in particular if you store user accounts on your server and can connect these bug reports to a user. Consider also whether the game save could include personal data, and whether the video clip could be analyzed to identify the data subject. Does this mean collecting this information in bug reports is forbidden? No, the GDPR doesn't forbid or allow anything outright. Instead, you should go through the compliance process. In a nutshell: determine the purpose of this processing, e.g. “fixing bugs” find an Art 6 legal basis for this purpose, e.g. “Art 6(1)(f) legitimate interest” or “Art 6(1)(a) consent” if the legal basis is legitimate interest, you must balance that interest against the data subject's interests determine whether your compliance requirements include creating/updating your Records of Processing, or whether you have to write a Data Protection Impact Assessment implement the processing in a manner that respects GDPR principles such as Transparency and Data Minimization if the legal basis is legitimate interest you must implement an opt-out solution if the legal basis is consent, you must request consent first in a manner that satisfies the Art 7 conditions for consent – and allow consent to be revoked easily prepare to satisfy data subject rights: information requirements per Art 13, usually done in the privacy policy right to access, rectification, erasure, and data portability right to object (opt-out) and to restrict processing be aware of your general requirements a data controller to process this data securely, e.g. use HTTPS connections to transmit bug reports, take steps to protect your own accounts (e.g. 2FA), and ensure you have a suitable contract with any data processors that act on your behalf, e.g. cloud providers or contractors I would question whether your bug reports really need to include a device ID. That isn't forbidden, it just complicates compliance a bit. And what about ePrivacy? The ePrivacy directive is known for its cookie consent requirements. But these consent requirements apply when accessing any information on the user's device, or when applying equivalent fingerprinting techniques. Your game save is not an issue because it is necessary for the game. But that device ID and other system information is more difficult. So what to do? Compliance isn't trivial, but certainly possible. You will likely process the bug reports under your legitimate interest, but might still have to collect consent for accessing a system ID due to ePrivacy. Such a screen might look like this: Oh no, the game crashed! Do you want to send a bug report to the developers? Your bug report will be protected as per our privacy policy (link). Your bug report will contain the following information: … Yes, collect system information and send bug report No, do not send bug report You could make an argument that a bug report can be sent in any case, and that you just need ePrivacy consent to collect useful system information. For example: Oh no, the game crashed! When sending a bug report to developers, do you want to include extra system information (link to details) that helps fixing the problem? In any case, your bug report will be protected as per our privacy policy (link). Your bug report will contain the following information: … Yes, send bug report with extra system information No, send anonymous report | The way you describe this UUID, it is pseudonymous data (see GDPR Art 4(5) and Recitals 28–29). That is, it is not directly identifying, but you have a mapping between pseudonyms and identifiers that can be used to re-identify this data. Effective pseudonymisation requires not only that the data is logically separate, but that there are effective organisational and technical measures preventing re-combination by unauthorized persons. Alongside with encryption, pseudonymisation is one of the safety measures that the GDPR explicitly requires whenever appropriate (see Art 25, Art 32). Pseudonymous data is still personal data, because you can easily re-identify the data. The PII concept is US-specific and is misleading in a GDPR context, where it is not the inherently identifying characteristics of the information that matters, but the realistic ability of the data controller to single out data subjects to whom this data relates (compare Art 4(1) and Recital 26). However, were you to irrevocably erase the UUID–email mapping, things are more tricky. There is no longer any connection with directly identifying data, so this data might be anonymous. On the other hand, such a persistent UUID still allows you to recognize/distinguish persons, so it might still be personal data. This might be the case especially when the UUID is used in long-lived cookies of website visitors, thus matching the GDPR's concept of an “online identifier”. This conclusion could be avoided by limiting reuse of UUIDs, e.g. creating a new UUID after some context-dependent appropriate duration. The GDPR does not require all data to be stored in the EU, but requires international transfers of personal data to have sufficient protections. If you're processing these data in countries without adequate legal protections (like the United States), additional safeguards have to be used. Pseudonymisation could be part of such safeguards, and has been suggested by some data protection authorities in the wake of the Schrems II ruling. However, pseudonymisation alone does not make the international transfer legal, it is more of a strategy to reduce remaining risks. I think that your systems has a good chance of being OK, but not neccessarily so. If in doubt, perform a DPIA and possibly consult your data protection authority under GDPR Art 36. If feasible, storing/processing data only in the EEA or in countries with an adequacy decision will simplify compliance. Safeguards such as pseudonymisation could be strengthened by rotating UUIDs, and by restricting access to the table with identifiers. | 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. | You wrote: As far as I believe, it is permitted under GDPR to record and store non-anonymized web server access logs, as these can be useful for security reasons. True, Recital 49 GDPR: The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, by public authorities, by computer emergency response teams (CERTs), computer security incident response teams (CSIRTs), by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. You asked: My question is whether this anonymization process counts as processing personally identifiable data under GDPR? IP addresses are personal data in some cases, so yes, you're processing personal data. Then, these anonymized logs will be fed into an analytics tool to provide stats on unique visitors, page hits, etc. These are purposes considered compatible with initial purposes according to Article 5.1.(b): Personal data shall be (...) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for (...) statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’); As a matter of fact, you might be required to anonymize the data for those purposes, see Article 89.1: Processing for (...) statistical purposes, shall be subject to appropriate safeguards, in accordance with this Regulation, for the rights and freedoms of the data subject. Those safeguards shall ensure that technical and organisational measures are in place in particular in order to ensure respect for the principle of data minimisation. Those measures may include pseudonymisation provided that those purposes can be fulfilled in that manner. Where those purposes can be fulfilled by further processing which does not permit or no longer permits the identification of data subjects, those purposes shall be fulfilled in that manner. If I were to anonymize the logs and continue to use them exclusively for security reasons, would that change anything? No, you would be processing data in a manner compatible with initial purposes (ensuring network and information security). Or does it not matter what I do with them once they are anonymized? Yes, it does. If you're not using them for "archiving purposes in the public interest, scientific or historical research purposes or statistical purposes" then you're using them for purposes incompatible with initial purposes. You would need to find new legal basis for processing. does this extra anonymization process on top then take it over the line meaning that consent and a privacy notice would be required? It depends on what you want to do with anonymized data. In your case, for security purposes or security and statistical purposes, you don't need the consent and there is no requirement for the privacy notice (but sure, it would be nice to publish one). For other purposes it might be different. | Since the Steam ID contains or may contain enough information for it to be possible to link your account to you as a physical person, it would definitely be considered "personal data" according to Article 4 of the GDPR. However, by agreeing to the DOTA2 terms of service, you have given consent for them to show your information to other players (or at least that is included in most terms of service I have read for other games. I have not read the one for DOTA2 specifically). Replays are an interesting corner case. If download of replays are only possible for other players or if the wording of the ToS says that you consent to displaying your user ID to anybody, that would mean that they would have covered their bases. As long as they comply with other parts of GDPR, like "the right to erasure" (Article 17) that is. If the API is accessible to anyone and not covered by the ToS you might have a case. If you only want to remove the traceability between you and the replays, you can always evoke Article 17 and delete your account. |
Can humming a bar of music be considered copyright infringement? I recently saw a tweet claiming a video got a DMCA claim based on humming a part of a song. Can uploading a (monetized) video of humming a bar or two of copyrighted music be considered as copyright infringement, or is it fair use? | Go to court and find out There is no doubt that humming a tune and recording it (or performing it in public) is a derivative work - a right reserved to the copyright owner. Whether it is fair use depends on the specifics of the case. From the tweet, we simply don’t have enough information, however, at a guess, it is probably not fair use. Fair use in law is Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Most people miss “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” - if you aren’t doing one of those things then you start behind the 8-ball when yo move to the 4 factor test. Note that the “criticism, comment, news reporting,” etc. must be about the copyrighted work - I can’t use your copyrighted work to, for example, parody a politician unless you are that politician. Many people have completely the wrong idea about what copyright infringement and fair use actually are, in part because the use of music on YouTube is allowed, not because it’s fair use but, because YouTube was smart enough to negotiate and pay for a permissive licence with music producers. For a full explanation, see this video. | Well, actually, fair use is maximally relevant. Copyright means, put simply, DO NOT COPY. Citing or not is irrelevant (plagiarism is a whole other non-legal kettle of fish). Technically, what you describe is violation of copyright. However, under section 107 of Title 17 (the copyright law), you could attempt to defend yourself against an infringement suit on the basis that your action was "fair use". See this LSE q&a for the essentials of fair use. | It's not a crime per se, but you're breaching contract if you're accessing it by normal means, that is, through a Web browser or through the API. Youtube Terms of Use 5B, emphasis added: Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content. You shall not copy, reproduce, make available online or electronically transmit, publish, adapt, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. YouTube and its licensors reserve all rights not expressly granted in and to the Service and the Content. It is a breach of the Terms, which you agree to and are contractually bound by, to download Content unless Youtube allows it. Because Users license, the Content to Youtube, Youtube is entitled to recover loss of income from your breach of contract, including loss of advertising revenue, and possibly even punitive damages. Legally, whether you can download it depends on the jurisdiction. It is generally acceptable to make a copy of media you purchase, however these rights do not generally extend to media purchased online, where you become bound by the terms of the service provider - in this case, Youtube. The owner of the Content retains ownership rights and licenses derivation, reproduction and distribution rights to Youtube. That is, if the content owner made it available on some other website for viewing, then you would have the rights to download it for the purposes of viewing it. However, you would still not have distribution, adaptation or modification rights unless they were assigned to you by the content owner. You may have a a Fair Use/Dealing defense for the content, depending on the purpose and nature of your usage. 17 U.S.C. § 107 outlines the considerations in a US Fair Use defense, which essentially boils down to: Nature and purpose of the use Nature of the copyrighted work Amount of the copyrighted work used The effect of the use on the value of the copyrighted work In the absence of case law to the contrary¹, the Terms of Use, copyright law, and fair use law are only legal principles we can rely upon in determining the legality of downloading content from Youtube. 1. It's possible that there is case law, but I've just spent a bit of time searching and haven't found any cases where end users were sued for downloading content. | Although you aren't interested in the TOS, you should be. You are not allowed to make any copy of other people's stuff without permission. The TOS is how you get permission. First, the author uploads his material to You Tube, because he has an account and the TOS associated with the account specifies the license that he grants to You Tube and the world – same thing with Stack Exchange. The TOS says (roughly) "when you upload stuff, you give permission for others to access your stuff using the You Tube interface". Content-consumers likewise are allowed to stream content using their interface, but not generally download. (The license terms changes over time – previously there were more license types). Specifically, You are not allowed to: access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service or any Content except: (a) as expressly authorized by the Service; or (b) with prior written permission from YouTube and, if applicable, the respective rights holders; and they don't expressly authorize ordinary download, you have to use their interface. You might also directly contact the author of the work in question and negotiate a deal where you can directly acquire a license from the rights-owner. But if you want to access the material via You Tube, you have to do it in a way that is permitted, and You Tube says that you're not permitted to download. Any "copying without permission" is infringement. | Liability for copyright infringement can arise directly or vicariously. A person can be direct liable if he personally makes an unauthorized copy of someone else's protected work. A third party can also be held liable for that infringement if he has knowledge of the infringing activity and makes a material contribution to the infringing activity. If an app is basically only good for downloading YouTube videos, the vast majority of which are protected, a court will likely infer that the app was made for the purpose of facilitating copyright violations. That was basically what happened with Grokster, and the U.S. Supreme Court agreed that Grokster was liable for all the copyright infringement happening through its app: Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). The best way for the developer to get rid of the IP complaints is probably to disable the app. | Not copyright as such because that is about protecting a 'work' — a voice is not a 'work'. As the court said in one of the following examples, "A voice is not copyrightable. The sounds are not 'fixed.'" (You could copyright a roar or a yell — some kind of fixed arrangement of sound(s).) But some jurisdictions have recognised property rights in voices and/or that the voice is protected by the person's 'right of publicity' (the right to control the commercial exploitation of their identity, of which the voice is a part). For example: Bette Wins Ruling In ‘Sound-Alike’ Lawsuit - AP News June 23, 1988 SAN FRANCISCO (AP) _ A federal appeals court has reinstated a lawsuit filed by entertainer Bette Midler after an advertising agency allegedly tried to duplicate her voice and singing style in one of its ad campaigns. The 9th U.S. Circuit Court of Appeals unanimously ruled Wednesday that Midler could pursue her suit against the Ford Motor Co. and the Young & Rubicam advertising agency. The court said certain personal attributes - such as a voice - can be considered property rights, protected by state law. ... U.S. District Judge Ferdinand Fernandez said Young & Rubicam acted like ″the average thief″ but dismissed Midler’s suit, saying no law prohibits imitation of a singer’s voice. But the appeals court disagreed. "A voice is as distinctive and personal as a face,″ the appeals court said. ″When a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs." judgment in Midler v Ford Another case in the US is Waits v Frito-Lay Inc. The US Court of Appeal found that a radio commercial's imitation of the voice of Tom Waits constituted a civil tort, "voice misappropriation". I'm not aware of any cases involving computer synthesis of voices. | No If YT#1 gets a license from artist A, that permits YT#1 to do whatever copying and reuse is stated in the license. It might be narrow or very broad. Usually such a license will only grant permission to the person who asked. Unless the license also grants permission to YT#2, or to some broader group which includes YT#2, YT#2 cannot claim any rights under such a license. Assuming that the license does not include him or her, YT#2 has the same rights as any member of the public would, but no more. In general, pitch raising a piece of music is a way of creating a derivative work. In the US, under 17 USC 106 one needs permission from the copyright owner to create a derivative work. Otherwise doing so is copyright infringement. The laws of other countries, and the Berne Copyright Convention have similar provisions on this point. Creating a derivative work requires permission in all countries that I know about. "Piggybacking" is not a thing in copyright law. A copyright owner can give permission (usually called a license) to any person or group of persons that the owner pleases. The permission does not extend to anyone else. This is true in all countries. I should be clear that YT#2 needs permission from both YT#1, and from A. The way the question is worded I have been assuming that YT#2 had permission from YT#1, but a comment from grovkin made it clear that I needed to be more explicit about this. It is possible for a license to permit a person to pass on the license to others. For example, all CC licenses and all copyleft and most open source licenses do this, and others could. But the license must explicitly grant such permission. The one way in which a person might create a derivative work without permission and without it being infringement is if an exception to copyright applies. In the US the main exception to copyright is fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more detail on fair use. Fair use decisions are made on a case by case basis, and generally depend on the detailed facts of the ase. But based on the limited info in the question, this would not qualify. It seems to use the whole piece of music, which tends to weigh against fair use. The new work does not seem to be transformative, that is, it seems to serve the same general purpose as the original. The new work might harm the economic value of the original, or might if many people did this. The original is creative, not factual. All of those weigh against fair use. Different countries have very different exceptions to copyright, and I do not know all of them. But the use described in the question does not seem to fit any that I know of. In any case, an exception to copyright applies to anyone, and does not depend on another person's license. It is thus never a form of "piggybacking". By the way, the question describes pitch raising ads "illegal". Making an unauthorized derivative work gives the copyright owner grounds to sue. If the owner does sue, and wins, s/he might be awarded money damages, and the court might issue an injunction ordering the infringer not to infringe again. But it would not normally be treated as a crime, and law enforcement would not be involved. In the US, only bulk copyright infringement, carried out as a business, is usually prosecuted (for example a factory churning out unauthorized music CDs). | The following answer is based on US-law. I am not a lawyer; this is not legal advice. If the book you read is in the public domain* you should be fine. Otherwise what you are doing is copyright infringement and probably not protected by fair use**. One of the rights granted to copyright holders is to control derivative works, and transference to different mediums, which is what your recordings would be. Under US law, whether an instance of copyright infringement is fair use is evaluated on a case-by-case basis, weighing four points: the purpose and character of one's use the nature of the copyrighted work what amount and proportion of the whole work was taken the effect of the use upon the potential market for, or value of the copyrighted work In my non-lawyer evaluation, point 1 depends on what you do in your video (unless you monetize your Youtube video, in which case it is likely to be decided against you), but if you are merely reading the book out aloud, it is unlikely to be in your favor (although it may not be against you as an "educational tool"). Point 2 depends on what is being read, with a informative work (e.g. a textbook) being more likely to be fair use than a creative work (e.g. a novel). Point 3 depends on how much and what proportion of a work you use; since you are presumably reading a whole book, this would most likely be ruled against you. Point 4 would almost certainly be decided against you, as you are essentially creating an unauthorized audiobook. In summary, you can read a book aloud. You can record your reading of it for your personal use. You should NOT upload it to Youtube, or other sharing sites. *Note that different countries have differing rules on when a book enters the public domain, and since the internet crosses borders, multiple rule sets may apply. |
When will Flash copyright expire? It would seem Adobe will kill Flash, but not release its source code under a free license. So, when will Macromedia Flash’s copyright expire? | Adobe Inc is a Delaware incorporated corporation, so we should look at United States copyright law. We can assume that all source code written for Macromedia Flash were works for hire and thus the author to be considered Adobe itself. Title 17 of the United States Code § 302 (c) states: In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. Supposing Adobe Inc final release of Flash was on 2020, its source code would enter Public Domain on 1st January 2116. (2020 + 95 = 2115, plus the remaining of that year) | 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. | No, CC does not replace copyright. A creative commons license is one way to use the copyright that you already have the moment you make an original creative work. Without a copyright, a creative commons license does nothing. You don't need to do anything to get a copyright. However if you plan to exploit a work commercially, or want to be sure that it is well protected, you can gain additional protection in the US and some other countries by registering the copyright. US registration can be done online at this page. The benefits of US registration are described on this page. Nor do you need to "file for" a Creative Commons license. by publishing or distributing a work with an indication that it is subject to a creative commons license, you have released it under that license and anyone may thereafter use it subject to the terms of that license. This is done with a statement such as "Released under the Creative Commons CC-BY-SA 4.0 license." Such a statement is often placed near the (optional but strongly recommended) copyright notice, but that is not required. if you wish to specify the form of attribution (for example to a specified pseudonym) or a URL to use in providing attribution, that should ideally be placed near the license statement. If the work carries a list of credits, those may be placed nearby as well, but need not be. | Yes, assuming the material was given the standard license. You would be creating a derivative work, and only the copyright owner has the right to authorize creation of a derivative work. See the copyright FAQ for general information. The owner can file a DMCA takedown notice with YouTube and they will by policy notify you of the infringement claim and unless you file a counter-notice (you legally couldn't given the facts you're asserting), they will take it down. The owner can also sue you. | I'm wondering whos responsible for this code if people start using it? The user. Can the people using it that think its under GPL in any way get in trouble for it or be made to remove it from their projects? Yes, they can be sued (successfully) for copyright violation. It’s not enough that you think you have permission from the copyright holder - you actually have to have permission. The law places the onus on the copier to seek out and get permission from the copyright holder. In theory, someone deceived in this way could sue the repo poster(s) for misrepresentation, however, there are practical issues about finding them, having them in an accessible jurisdiction and if they are judgement proof. Copyright law was created to protect physical books and paintings - it doesn’t really fit with digital methods of reproduction but it is the law. It doesn’t matter that complying with it can be hard bordering on impossible - comply with it you must. | You are asking the wrong question. It should be: When you have downloaded the content and metadata, what are you allowed to do with it and what is forbidden? Somebody owns the copyright to the text and images in the thumbnail. This could be the operator of the third party website, or that site has licensed the content from yet another party. You haven't licensed it from anybody. So you can watch the content in accordance with the TOS, and your computer can evaluate the metadata to do it, but you cannot display it on your own site. Details will differ between jurisdictions, of course. You might also be held responsible for illegal content in the thumb you generate. Follow-up: There seems to be some question of what 'thumbnail' and 'card' mean in this context. This answer assumes a somewhat scaled-down representation of the content of the entire page, not just a collection of actual metadata like content length and expiry. | No, it's still copyright infringement. When you modify a copyrighted work in any way, you generate a derivative work which you are not allowed to distribute without the permission of the original copyright holder. | The version field of the HTTP 'user-agent' header is used to communicate compatibility level, not the provenance of the source code. Almost every browser around claims compatibility with Mozilla. In fact Silk is based on the BSD licensed Chromium browser, which doesn't impose a requirement on source distribution. |
Copyright of children's folklore songs Suppose artist A wanted to include a song to the tune of a children's nursery rhyme, such as Pretty Little Dutch Girl. This song was written in the 1940s, so if the composer was Australian, it would probably be covered by the rule of 70 years after death. The latest song from the list of nursery rhymes is "On Top of Old Smoky", recorded by The Weavers in 1951. Some are from the 16th century and so will probably have no copyright. How could artist A gauge which of these songs are in the public domain, which ones have copyright, and which are in a grey area in between? | The burden rests on A to determine that the work is not protected by copyright, and there is no fool-proof registry where you can look up a particular work. One form of proof would be finding a copy of the song published in the 18th century. It might be possible to establish that the work is no longer protected using expert testimony (e.g. a musicologist who could establish that the song existed at some early point in time). As an example, the song "Misirlou" was registered in the US by Nikos Roubanis in 1941, though the song was already in existence in the 1920's, and there was no legal challenge to his copyright. From the legal perspective, that is who has the copyright, except in Greece where copyright is shared with Michalis Patrinos. One might be able to challenge a copyright registration if it is proven that the song could not have been composed by the registrant (establishing via manuscript evidence that it was written 100 years earlier). There is no way to advance-test the legal strength of your evidence that the song was created long enough ago, and if a work is registered, that makes the job even harder. | I'm wondering whos responsible for this code if people start using it? The user. Can the people using it that think its under GPL in any way get in trouble for it or be made to remove it from their projects? Yes, they can be sued (successfully) for copyright violation. It’s not enough that you think you have permission from the copyright holder - you actually have to have permission. The law places the onus on the copier to seek out and get permission from the copyright holder. In theory, someone deceived in this way could sue the repo poster(s) for misrepresentation, however, there are practical issues about finding them, having them in an accessible jurisdiction and if they are judgement proof. Copyright law was created to protect physical books and paintings - it doesn’t really fit with digital methods of reproduction but it is the law. It doesn’t matter that complying with it can be hard bordering on impossible - comply with it you must. | Court filings are, in general, matters of public record. This does not automatically put them into the public domain. This will mean that, absent a special order of the court, anyone will be able to read this filing as pert of the court records. Many courts now make all or parts of their records available on the web. But the copyright holders will possibly retain their rights to authorize the making of further copies, and surely retain the right to authorize the making of derivative works, and their other rights that are part of the copyright bundle, such as the rights of public performance. These rights would not be retained if the work had been placed in the public domain. | A mnemonic like CRAAP is not protected by copyright. The Copyright office says "Copyright does not protect names, titles, slogans, or short phrases", so you do not run afoul of copyright law using that or any other abbreviation. There is a registry of copyright-registered works, maintained by the copyright office, where authors may register their works, but legal protection exists regardless of registering. Some abbreviations are protected under trademark law, which you can search here. There are 50 registrations that include "AAA" and three that are just "AAA", also you'll find WTF and LOL. Trademark protection doesn't forbid all uses of an registered abbreviation. It turns out that "CRAAP" is not a registered trademark, but it could be the registered trademark of a manufacturer of crab traps, so you would not likewise call your crab trap company CRAAP, but it would be okay for plumbing supplies (trademark is relative to business uses, which are described in the registration). The only other imaginable scenario that would impede your plan is a non-disclosure agreement. For that to be relevant, there would have to be a valid contract between you and the teacher which specifically prohibits disclosure of the acronyms. The chances that there is a contract between you and the teacher is so low that it is hardly worth considering, but let's explore that for a moment. A contract is an agreement between parties where each party promises to do something that they are not already obligated to do, in exchange for getting something that they do not already have a right to. You had a contract with the college, not with the teacher. The college clearly would not prohibit "using any information gained in the course of study here", and the courts would not enforce any such "don't use" wording in a contract as unconscionable (why else do you go to college?). Your contract with the college allows you to take classes and use the knowledge that you gain. The teacher's contract with the college requires her to teach some content, and probably allows her to set certain rules of class conduct. She might have been able to toss you out of class for disseminating her methods, but at this point she has no legal recourse. NDA enforcement is generally limited to protecting "trade secrets", which are defined in terms of information with independent economic value deriving from the fact that the information is non-obvious". Also, an NDA will have a time limit associated with it except in the case of highly-sensitive personal information (social security numbers), so the courts will not enforce language saying "you can never make use of this information, or these names". | One principle of copyright law is that if you can prove independent authorship, there cannot be liability no matter how similar your work is to the prior work. "If by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." (Sheldon v. MGM Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936)). Now, of course, the challenge is proving that you've never heard a given piece of music, or never read a particular work of fiction. If you have, even unconscious copying exposes to liability. And if the plaintiff can prove that you had access (such as the scriptwriter who sent a copy to a movie studio), they will have an even easier time proving the copying. If there is no proof of copying or not-copying, the copying can be proved circumstantially either through expert testimony or the jury's evaluation. The expert might testify something like "There is an identical tonal progression in these two songs, even though they were written in different keys. There were a million different ways the songs could have been written, but they are identical in this respect." The jury can consider that information and find the defendant liable. Or, the judge may simply tell the jury, "You may listen to these two songs, and find the defendant liable if you find them to be substantially similar to the extent that it is more likely than not that the defendant copied the plaintiff." TL;DR: The process can be conclusive, but if it isn't, then the output will be the evidence that the jury will consider. | It would seem that your song is a derived work. You took the original work and found words that sound the same. If the original work had used different words, your work would have ended up differently. So you have a derived work. Same as making a translation; if the original was different, then the translation would be different, so the translation is a derived work. I was asked "How is this not straight up infringement". But it is. Not only copying is an exclusive right of the copyright holder, but also the creation of derivative works. | Everything you see there is copyright and trademark the Tolkien estate or a derivative work thereof. It's all illegal. | If you're in the USA, this almost certainly falls under fair use, or if you are in another jurisdiction, it almost certainly falls under an analogous exception for educational use. The fact that the excerpt is short contributes to this conclusion. You can also avoid having to rely even on these exceptions by choosing sources that are in the public domain. The specific date before which a work is guaranteed to be in the public domain depends, again, on your jurisdiction, but it's probably sometime in the early 20th century. For example, you're certainly on solid ground if you use Dickens. |
Can a clause be added to a terms of use that forbids use of the service if the terms of use would be illegal in the user's jurisdiction? Can one add a clause stating Do not use this application if the terms demanded cannot be provided by law For example, let's say one term of use states that information collected may be retained forever, which is not possible in countries subject to the GDPR. In this case, users would be required not to use the application. | Yes, but ... It doesn’t protect you. Let’s imagine you put such a clause in and a person in Europe used your service notwithstanding: they’ve broken the contract but you’ve broken the law. You get the fine and they get ... nothing. Because you can’t contract outside the law you never had a valid contract with them so you have no basis to sue. Further, because you are purporting to something you can’t legally do, you are probably on the wrong side of misleading and deceptive consumer protection law: which is another fine. If you can ensure that you don’t breach local law - like by not operating over the internet - then you can choose not to deal with e.g. Europeans. If you can’t guarantee that, then you’re stuffed. | The GDPR does not outlaw such processing of personal data. It merely regulates how and for what purposes you can process personal data. In general, you can conduct any processing activity as long as it has a clear purpose and a legal basis. Here, the purpose would likely be something like “conducting business with my clients” and the legal basis would be a “legitimate interest”. A legitimate interest always requires a balancing test that weighs your interests against the interests and rights of the affected persons. For example, can the affected persons reasonably expect such processing activities? In a professional setting, it can probably expected that business partners keep notes about contact persons so your intended processing could be fine. The GDPR does impose some general constraints. There are general principles like data minimization and storage limitation – you should only collect data that is necessary for your purpose, and shouldn't store it for longer than necessary. You should think about appropriate technical and organizational measures (TOMs) to protect the processing activity, for example about how your CRM is hosted, how backups are made and how security updates are installed, who has access to the personal data, and how the people with access to the personal data can be trained. For example, such training might inform your employees that they can only use the data in the CRM for business purposes, but absolutely not for personal purposes like asking Gina from reception out for a date. | 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. | GDPR rights and obligations cover different things: A duty of the data processor towards the government of the country where they operate to present certain documentation, and to implement technical and organizational measures to protect data. These would be audited by government agencies, not the individual customer. A single data subject cannot waive them. A duty of the data processor to process and store personal data only with a legal justification. User consent is one possible justification, if it is informed, revokable, etc. So a single data subject can waive a "ban" on storing his or her data in a database along with all the other users who waived that "ban," but the duties towards the government regarding that data would still apply. A duty of the data processor to respond to an Article 15 request by the data subject in a certain way and timeframe. If a data subject writes a letter to the data processor and explicitly states that the letter is not an Article 15 request, then Article 15 does not apply. The data subject would of course have the right to make an Article 15 request at a later time. | 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. | There's a few good reasons that spring to mind. Firstly, it's possible that Tesla or Microsoft have been themselves licensed something where the license is not sub-licenseable. This would prevent them from subsequently licensing you, but a promise/pledge is not a license and they can go right ahead and make promises. Secondly, a license is broadly an agreement between two parties. A promise doesn't require formal acceptance whereas a license does. To answer your question regarding a covenant not to sue - that's something else entirely. A covenant not to sue is a legal agreement between parties where the party seeking damages agrees not to sue the party it has cause against, whilst still preserving the existence of the cause (and conditions may have been set that must be met for the covenant to stand). For example, Party A still maintains that Party B used work that was not licensed to Party B, but Party A has agreed not to sue on the matter, provided that Party B advertises the fact that the work was used. | Since your consent is not required in Texas, revocation is irrelevant. Restrictions of use of recordings flow from the legal nature of the recording itself, so there is no provision saying, for example, that only one party needs to consent for just recording, but all parties must consent to make any use of the recording. Since these laws were devised to regulate the practice of wearing a wire and collecting evidence of crimes, requiring consent from all parties would be counterproductive to the purposes of the law. You could try drafting a contract where you pay people to not record you (anybody who doesn't sign, you shouldn't talk to them), but enforcement could be tricky, so I would not try a DIY contract: get a lawyer. You would have to show that you were harmed by them making an unconsented recording. It should be in the form of a contract where you give something of value in exchange for something of value, which is a thing typically enforced by the courts. Also bear in mind that even in an all-party state, if you know that you are being recorded, you cannot just say "I do not consent", you have to stop talking. Continuing to talk when notified that there is or may be a recording constitutes implied consent, which is why on the phone companies often announce via recording that the conversation may be monitored, and they do not ask "Do you consent". By not hanging up, you consented. | Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself. |
Landlord responsible for extended power outage beyond their control I rent an apartment in Oregon and have been out of power for nearly a week following a pretty nasty ice storm that hit the area. Our local power company has so far been unable to restore power due to the widespread nature of the damage (our block is apparently low-priority!) The unit is heated electrically, so without power I have no heat and I'm unable to live in my apartment. I'm couch surfing with friends and family until power is restored. Since a landlord is required to provide heat and electrical power to the dwelling, is this something I should expect to see a reduced rent for? The Oregon Tenant and Landlord Duties document I found from NCSL states ORS 90.320 A landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition. For purposes of this section, a dwelling unit shall be considered unhabitable if it substantially lacks: ... (d) Adequate heating facilities that conform to applicable law at the time of installation and maintained in good working order; (e) Electrical lighting with wiring and electrical equipment that conform to applicable law at the time of installation and maintained in good working order; | You could first look for a force majeure clause in the lease which says something about natural disasters and the like. If there is a clause which says e.g. "Landlord will not be held responsible for problems arising from ice storms", that doesn't help you, but maybe it specifies e.g. rent reduction of $2/day for lack of electricity. That doesn't mean he can ignore the law. However, in this situation, a particular reading of the law ("there must be an infallible supply of electricity") imposes an impossible requirement on the landlord, and the courts probably won't require a landlord to do the impossible. It is not clear that your situation violates either the letter or the spirit of the law. Take clause (d): your "heating facilities" presumably conformed to applicable law at the time of installation and have since been maintained, and they are adequate, but they don't work if the grid doesn't supply power (and that is not a matter under the landlord's control). In other words, he provided the "infrastructure", and the problem is on the power company's end. Likewise "electrical lighting with wiring and electrical equipment" -- an ordinary interpretation of that clause is "wires and fixtures", and doesn't include "flow of electrons", which is supplied by your local power company. | he is jointly liable for the remaining 3 months, even though he never signed anything. Is this true? That seems unlikely. The lease is between Adam and the landlord. Although the lease might have language making all tenants jointly and severally liable, it would affect Bob only if it can be proved that he was aware of those terms when he moved in. Your description does not elaborate on any agreement(s) between Adam and Bob. But Adam is not allowed to impose on Bob any obligations merely because relations between them broke down. Absent a contract between Adam and Bob, the question of whether Adam is entitled to any recovery from Bob could only be assessed on equitable grounds. | Before you go changing locks, you might want to hire an attorney. There is law in Ohio that governs "such" relationship, which are typically landlord-tenant relationships, but might not be strictly construed the way you'd prefer. In a classic landlord-tenant relationship, it is illegal to change locks on a tenant, and if you want a tenant booted out, you have to go through the court process and get the court to order an eviction (carried out by the sheriff). A landlord-tenant relationship need not involve a written lease, all that matters is having an agreement. On the face of it, it looks to me as though you agreed to let your son live there, and his attorney would no doubt point to whatever benefit you received from allowing your son to live there as "consideration" in this verbal (vague) contract. The exact terms of that contract don't matter: what matters is that state law limits what you can do. You can read ORC here on the topic of evictions. Actually physically removing a person is a crime (battery), so definitely don't do that. Lockouts have been illegal since 1973. You no doubt can show the court that your son is now effectively a trespasser, but he clearly did not break in without permission, so the bottom line is probably a visit to the court (unless a letter from the attorney resolves the matter). Alternatively, it could be simpler and cheaper to just go directly for the court process. There are professionally-written manuals for about $20 that spell out the procedures, and an attorney is not actually required to evict someone. You can just treat the situation as a standard landlord-tenant process, give the required notices (using legalese in a notice may well be sufficient). If you do have to file in court, there are a couple hundred bucks of fees associated with filing. It takes time. There is a 3 day notice requirement on your notice, after that you can file the complaint and a hearing is scheduled after that (county dependent: I hear it's about 3 weeks in Franklin). Defendant can stretch that out for a week or so by asking for a continuance to seek legal counsel, but eventually you will prevail unless the judge is too warm-hearted and orders family counseling (you never know, these days). They you apply for the "red tag", the bailiff posts it within a few days, and that gives him 5 days to leave. If that doesn't work, you call the bailiff for the physical removal, and they probably respond within a couple of business days. | In the US, the laws that govern habitable residences and the related issues - such as land zoning, health regulations, sewer and water services, private and commercial building codes, etc. - are very localized at the city and county levels. So you need to check with the city and county where you want to place such a structure and determine the relevant laws. Commercial buildings are much more heavily regulated than private residences. (And some federal laws and codes could supersede local laws.) Many cities and counties have their zoning and building codes and requirements online, as well as permitting systems to apply for building and utility hookup permits. It's true that some counties in the US have minimal zoning or building codes, so yes, you could move a shed to land you own in that county and build your own road, haul your water, put up solar panels, dig an outhouse, and not deal with any - or very few - regulations. But cities and towns will be much more regulated, since zoning and building codes are used to insure public safety, and services such as water and sewer are supported by taxes and protect public health. In other words, you may not legally be able to live in a shed that does not have city sewer, water and electric service. There may also be building codes for minimum size of bedrooms, egress windows for fire, ventilation, heating systems, so even if a small house is sold as a complete residence in a package, it may not pass local building codes. Breaking zoning, building and health codes can result in the local inspectors visiting and determining if the residence is up to code; they will not typically need a warrant or your permission to enter. They can order you to bring the residence up to code, if possible; or condemn the structure and require you to move out. | Summary: More information needed, but I have listed out some legal claims available to homeowners when they have similar concerns. There are several issues here which need elaboration before deciding if you can take legal action. The first is: "the destroyed some vegetation on my street." If the by "my street" you mean that the street is part of your property, you may sue the builders for trespass and/or damage to property. If the street isn't your property, but the vegetation is your property, you may sue them for destruction of your property. What you are probably looking for, however, is a prohibitive injunction. This is a court order forcing the builders to avoid doing something, e.g. An order forcing them to avoid using roads adjacent to your property. To obtain such an injunction you will have to prove that what they are doing is violating your rights, is somehow harmful to you or your property, or inevitably will do either of those things. One way to demonstrate this is if you can show that you have a claim under nuisance, or damage to property, or trespass. On the description you have given us, there isn't enough to say your rights are being violated, or that your property has come to harm or will come to harm because of their actions. You should also be aware of claims under nuisance. Nuisance is when someone is doing something that prevents you from "peaceful enjoyment of your land". It appears from your question that the actions of these builders have, in your mind, done this. However there are several aspects that have to be satisfied for this to amount to private nuisance: What the builder are doing must be a "continuing state of affairs." They may have annoyed you by trampling over vegetation, but if this is a "one-off" event, it is unlikely to amount to nuisance. A reasonable person must find the conduct to interfere with the enjoyment of their land. That is to say: it isn't enough that their conduct is making you unable to enjoy your land peacefully, you have to show that any reasonable person in the same situation would find this conduct unacceptable. Finally, the context of your neighbourhood matters: if the behaviour is something expected in a residential area, then it will not amount to a nuisance. For example, heavy drilling in an industrial location will not amount to a nuisance, while the same may do so in a normally quiet neighbourhood. | The wording of the original lease and the renewal form are vital here. The Texas Property code, Title 8, chapter 92 is the relevant state law for residential tenancies. It neither forbids nor guarantees a right of renewal. That is left up to the lease agreement. However, it does require a landlord to provide a tenant with a copy of any signed lease promptly. Specifically Sec. 92.024. LANDLORD'S DUTY TO PROVIDE COPY OF LEASE provides that: (a) Not later than the third business day after the date the lease is signed by each party to the lease, a landlord shall provide at least one complete copy of the lease to at least one tenant who is a party to the lease. ... c) A landlord's failure to provide a complete copy of the lease as described by Subsection (a) or (b) does not invalidate the lease or, subject to Subsection (d), prevent the landlord from prosecuting or defending a legal action or proceeding to enforce the lease. (d) A landlord may not continue to prosecute and a court shall abate an action to enforce the lease, other than an action for nonpayment of rent, only until the landlord provides to a tenant a complete copy of the lease if the tenant submits to the court evidence in a plea in abatement or otherwise that the landlord failed to comply with Subsection (a) or (b). (e) A landlord may comply with this section by providing to a tenant a complete copy of the lease: (1) in a paper format; (2) in an electronic format if requested by the tenant; or (3) by e-mail if the parties have communicated by e-mail regarding the lease. Sec. 92.003 provides that: (a) In a lawsuit by a tenant under either a written or oral lease for a dwelling or in a suit to enforce a legal obligation of the owner as landlord of the dwelling, the owner's agent for service of process is determined according to this section. (b) If written notice of the name and business street address of the company that manages the dwelling has been given to the tenant, the management company is the owner's sole agent for service of process. (c) If Subsection (b) does not apply, the owner's management company, on-premise manager, or rent collector serving the dwelling is the owner's authorized agent for service of process unless the owner's name and business street address have been furnished in writing to the tenant. Dallas municipal law prohibits retaliating against a tenant who complains about improper conditions or requests maintenance, but says nothing about lease renewals. Under ordinary contract law, an offer and acceptance makes a contract, unless the parties have previously agreed otherwise. Moreover, demonstrable practice can make or confirm a contract. If the tenant has paid rent for either March or April in reliance on the renewal agreement, and at the specified renewal rate, and that rent has been accepted, that may well constitute ratification (and thus execution) of the renewed lease. This is if the new lease would hav started before the April rent was due. So the tenant may well have the right to enforce the terms specified in the February renewal form. However, this will depend on what those terms are, and also what renewal provisions, if any, were in the original lease. It might be a good idea to send a letter to the landlord and manager, saying that the renewal form that you signed constitutes an acceptance of their offer, and thus a binding contract, and asking for a signed copy as per section 92.024, mentioning the section number. If it were me, I would send such a letter by both email and USPS certified mail, to both the manager and the landlord, if I had both addresses. I would keep a copy of any communications, and make them all in writing from now on (email is writing, legally). In any case the tenant would be wise to continue to pay rent on time in the amount specified on the renewal form, by some traceable means such as a check, money order, or credit card. I would be sure to use a method the original lease listed as acceptable, or that had been used in the past, except for cash. If I used a check, I would write "payment in full for rent of {address} for {month}" on the back The tenant would be wise to consult a local lawyer who specializes in tenant's cases, there seem to be quite a few. There is a local housing crisis center. It offers regular (twice a month) legal clinics with volunteer lawyers, and can be reached at 214-828-4244 or [email protected]. Such a center might be able to recommend local lawyers. Often an initial consultation with a lawyer on such a matter is free or at a low charge. It would probably be a good idea for the tenant to take some action fairly promptly. 15 U.S. Code Chapter 96 (the federal e-sign act) (section 7001) provides that: (a) In general -- Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce— (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. Also the UNIFORM ELECTRONIC TRANSACTIONS ACT (1999), which has been adopted by Texas, allows but does not require the use of electronic signatures. Thus the tenant;s email response ought to be a vald means of forming a contract. | If it were me, I would leave. Who wants to rent a room in a home where you are not wanted? However, there should be concessions. I would ask for 1.5 months rent refunded, but would happily settle for one month. I am sure there are many nice rooms, close by, where you are welcomed. Given additional information commented by the OP, the landlord is looking to increase his rents. Evidentially this municipality has strict rent controls. In this case, I would enter negotiations with the landlord. I would offer him a percentage of his anticipated rent increase and probably start at 50%. If the OP has been a good tenant (always paid on time, and low maintenance) the landlord might see this as a bargain. No need to find a new tenant and no need to vet one that might pay poorly. The better the tenant has been, and the more strict the renter protection laws the more appeal this offer will have to the landlord. The benefit for the OP is they don't have to move, or find a new place with its associated costs and inconvenience. If the landlord is just a mindless corporate drone with no decision making power, this will not work. | Probably not. Overview You haven't specified a jurisdiction. I will talk about Australia because that's what I'm familiar with. In Australia the most relevant area of law would be tort, specifically negligence. The university would be liable to pay damages if a court found that it owed a duty of care to your friend, that it breached that duty, and that your friend suffered injury ('injury' including loss of property as well as mental suffering) as a result of that breach. Also potentially relevant would be contract law, if your friend and the university had entered into some kind of agreement relating to his security, or equity, if the university had somehow acted to lead your friend to rely, to his detriment, on the university protecting him (promissory estoppel: Walton Stores v Maher). However, I think this is unlikely unless, for some reason, the university had put up signs saying 'Please come onto our land and we will be responsible for your security'. Negligence You have stated that 'it is their responsibility to make sure all students are safe on campus.' It is not clear whether you mean to state that as a fact or whether you are suggesting it as a possible hypothetical basis of liability. I am not aware of a case that establishes the proposition that universities do have such a duty. The judgments in Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 discuss the liability of the occupier of land (such as the university in your example) for injuries inflicted by criminals upon people present on land (such as your friend in your example). In that case, the defendant ran a shopping centre. The plaintiff worked at a shop in the shopping centre. At the end of the plaintiff's shift at 10.30pm, it was dark outside because the shopping centre switched the lights in the car park off at 10pm. The plaintiff was mugged in the shopping centre car park on his way out to his car. The key question there was whether the defendant shopping centre was under a duty to keep the lights on for workers leaving work (along with the question of how the failure to illuminate the area led to the attack i.e. whether the plaintiff still have been mugged if the lights were on). Therefore the question that we are presently interested in, about an occupier's responsibility to protect visitors, is only dealt with as a side issue in that case. But the principle is pretty well-established that, generally, you are not responsible to protect another person from the criminal acts of a third person. The common law has a strong presumption against imposing liability for 'omissions' as distinct from acts, which is another way of saying that the courts don't want people being liable to run out into the street and help people. See paragraphs 27 and 28 and thereabouts in Modbury Triangle. Particular relationships may exist which create such a duty. One is in relation to school children; the school is responsible for taking such care of the child as a parent would. The relevant features of this the school-child relationship include the child's vulnerability as a child and the way the school controls their movements and enviroment during the school day. I presume that your friend is not a child and the university does not control his or her movements. Therefore a court is likely to be looking at the general principle that the university is not responsible for protecting people from the criminal acts of strangers, and then looking (and probably not finding) any special feature of the relationship between your friend and the university that creates an aspect of vulnerability, reliance or control that makes it reasonable to impose a duty of care. Some people think that there is a general principle that if something bad happens to them, some identifiable person with cash must be responsible for paying compensation, whether that is an insurer, the government or a nearby corporation. The common law has not picked up that principle. The common law would slate the responsibility home primarily to the mugger. Sue them. What does the university have to do with it? Conceivably the university might also be liable along with the mugger, but the fact that an injury occurred and nobody else can in practice be held responsible does not in itself make the university liable. As mentioned by Pat W., there may be some other feature that creates a duty, such as if the university had made some change to the environment that allowed made the attack to occur when it wouldn't otherwise have e.g. moving your friend's dormitory so that the only entrance was through a dark alley, or if the attack occurred inside a university building where the university controlled entry (even then not sure that would get your friend over the line). |
Break lease agreement due to COVID-19 The mom holds B-1 visa (business visitor), can only legally stays in the USA one-half year. So the mom has to travel back and forth from the USA and her home country to get a new visa every half year so she can legally stay in the USA to accompany her 15-year-old son to high school. The mom scheduled a trip on March 29, but because of COVID-19 the flight was cancelled. Once she got notice from the airline company, she realized that it's impossible for her to re-enter the USA in a short time. She found a host family for her son and noticed the landlord on March 15th that she would like to cancel the lease contract because of life change. The landlord never took action to re-rent the unit. Yesterday (07/01/2020) the landlord emailed the mom, asked for 8 months compensate since there are 16 months lease left. My question is: Are the reasons (mom can't stay because of COVID-19 and the son is too young to live by himself) legally justifiable reasons? Is the 8 months compensate reasonable? | Are the reasons (mom can't stay because of covid-19 and the son is too young to live by himself) legally justifiable reasons? Unfortunately, not in this case. The landlord can prevail by arguing that the mom, insofar as a holder of a non-immigrant visa, knew or should have known of the risks of being denied entry in the US. In terms of the Restatement (Second) of Contracts at § 154 (a) & (b), the mom is the "Party [who] Bears the Risk of a Mistake". Since the risks of which the mom was aware include even arbitrary ones such as the USCIS officer's discretion, an allegation of "supervening circumstances" as per the coronavirus crisis is very unlikely to add any merit to the mom's legal position. Is the 8 months compensate reasonable? Although this is admittedly subjective, at first glance it appears reasonable or perhaps even generous (the landlord is proposing the midpoint: half of the remaining 16 months) considering that the landlord is entitled to the completion of the lease. The "8 months as compensation" is essentially the landlord's proposal to settle his otherwise viable claim of breach of contract. You as lease holders can always attempt to negotiate and make alternative proposals, which is what you are doing already. Here, the landlord seeks to obviate court proceedings that can be a drag for both him and especially for the mom because she would be unable even to present her arguments in court and/or quasi-judicial proceedings. A settlement would benefit the landlord also from the standpoint that he would no longer be required to prove mitigation of damages (if that is a requirement in his jurisdiction). And, unless the settlement provides otherwise, the landlord would be free to immediately re-rent the unit without having to reimburse the mom (or the person(s) whose name is in the lease). That being said, it is important for the lease holder(s) to secure in writing (specifically in the settlement document) a statement from the landlord in the sense that, by virtue of the agreed compensation, the landlord waives any and all claims related to the early termination of the lease. It is always smart to be cautious and preclude the landlord from eventually bringing a claim alleging that the agreed compensation was for something else or that it did not fully settle the controversy(-ies). | "Medical lawyer" is really the wrong focus, this is an issue of civil rights. The question would be, is it a violation of your civil rights to prevent you from taking your baby home; is it legal for the federal government to investigate people who refuse to take a covid test? You can take the question along with pertinent evidence to a civil rights attorney. To pick a non-random hospital's web page, they note that "Any person having surgery or a procedure, including birth, at a Texas Health hospital will be tested for COVID-19 to provide appropriate care for the patient, and for the protection of visitors and the care team", and "you will need to be tested at admission to help safeguard you and the care team". In answer to the question whether you can decline testing, they say "Testing is recommended to promote the health of you and your baby. Patients who have COVID-19 can have a weakened immune system and may have inflammatory symptoms that can compromise healing. We encourage you to speak with your provider about the best decision for you", which doesn't explicitly say "No you may not", nor "Yes, you may". However, they cannot literally force you to take the test: at most, they can refuse to treat you. In answer to the question "Will I be separated from my baby if I test positive for COVID-19?", they say "Texas Health will follow guidelines from the American Academy of Pediatrics, American College of OB/GYN and the Centers for Disease Control for how to keep you and your baby safe during your hospital stay. Ultimately, any decisions about care for you and your baby will be between you and your provider, based on what is best for you both". This is also not crystal clear. There are three primary legal issues, putting a worst spin on their policy. They say up front that you will be tested prior to admission: the question is whether you can decline to take the test but force them to admit you. Now we are closer to the realm of a medical negligence attorney – they can refuse to treat you, but that might leave them liable. The second question is whether they can temporarily take the infant away, against the mother's wishes (for example, hold the infant in a separate facility while the mother is in the hospital). The third question is whether they have direct authority to take the infant away when you leave the hospital. The third question gets a plain and simple no. The Texas Dept. of Family and Protective Services has some authority in such a matter, but taking a child requires an investigation and a court order. | The fact that you're not a native speaker of English doesn't alter the legal situation. If you literally had no understanding of English but for some reason you signed a piece of paper, then you might argue that there was no agreement in the first place, but obviously you do speak some English. Most people don't actually understand what contracts mean (on both sides). Contracts are still enforced, based on what the contract says. The move-in data is proposed, not firm, and it even indicates what the charges are if your circumstances change and the dates have to change (whereas is their circumstances change, they wouldn't have a basis for charging extra). It also does say that there will be no refund if you change your mind. So the piece of paper says "No refund". The problem seems to be that there's an "agent" whose statements you relied on, who is ultimately responsible for this problem, and s/he implied that you could get a refund. It's not clear what kind of "agent" this is (is he working for you, or for the owners?). You'd have a somewhat different legal basis depending on which it is, but you could sue someone in either event, assuming that you could actually persuade the court that you were given false information which you relied on. The statement "they will refund your money if the guy doesn't move out by the 16th" is false; the statement "they may refund your money if the guy doesn't move out by the 16th" is true. If the latter was the statement that you relied on, then you knew (or should have known) that that isn't a promise, it's just a guess, and if you read the piece of paper you know that it's a promise with no basis. So I would say it comes down to establishing what promise was made to you. Arguing that the agent "made" you sign isn't going to get you anywhere (unless you can prove actual coersion). | In general, a properly signed lease is binding. But there are exceptions, and they vary depending on the jurisdiction: country, state/province, and even city or county in many places. You mention a claim that the property should not be leased "because the owner needs it". In some jurisdictions, there is a special exception if the owner personally, or a member of the owner's immediate family, intended to live in the property. It is not clear form the question if such an exception would apply. it might well be that a person in the position described in the question has a valid and enforceable lease, and could simply remain in the property, paying rent, and the owner would have no valid grounds for eviction. But this kind of case will depend on the exact wording of the rental agreement, and on the exact provisions of the applicable laws, which vary widely depending on the location of the property. A person in this kind of situation would b wise to consult a local lawyer who will know local property law, and how the provisions of the agreement and other claims will be treated by local courts. There may also be local tenant assistance organizations, run by the government or by non-profit groups, who will know local law and can assist in such cases. A general answer cannot be gotten from a forum such as this which an individual should rely upon in such a case, particularly when the question does not even state what country, let alone what specific locality, is involved. | Two factors are relevant. First, the language of the lease sometimes contains an abandonment clause that makes vacancy a default under the lease. This is common in a commercial lease, as vacancies can undermine the apparent viability of a strip mall or mall, but these provisions are less common in residential leases where the rent is current. Second, since this in New York City, there is an issue of rent-control. Rent-control benefits are available only for residential leases, and if you do not live there for long enough, it could be reclassified as a pied-a-terre and cease to qualify as a rent-controlled apartment. If your apartment is not a rent-controlled apartment, this isn't a concern, but if it is, further research related to continued qualification as a rent-controlled apartment in New York City is necessary. | The default rule is that a landlord can refuse to rent to anyone for any reason, in which case the landlord can refuse to rent in this case. There are civil rights laws that limit this discretion in the case, for example, of discrimination based on race, or family status. But, those laws often have exemptions for owners of small amounts of property (e.g. a unit in their own home), which can't easily be determined from the question. If a civil rights law applies, the landlord must choose among potential renters on a non-discriminatory basis - the landlord doesn't have to rent to anyone in particular, but can't use the prohibited reasons to make the choice. If the default rule does not apply because a civil rights law unrelated to immigration bars discrimination against a tenant, someone's undocumented immigrant status probably doesn't provide an absolute defense to the civil rights law, but might be one factor among many that a landlord could consider in choosing among available tenants in much the same way that credit ratings, income, and a prospective tenant's criminal record, and other factors might be considered. | A limitation has to be expressed in lease and must not violate laws related to housing discrimination that apply to the place where the leased property is located. There are also other terms of a lease that are statutorily prohibited or prohibited at common law (e.g. imposition of a penalty interest rate in excess of the rate allowed by usury laws). But, the general rule is that anything not prohibited by law is allowed. A secondary analysis is that one of the common law prohibitions in contracts is a "penalty" which means a fixed monetary sanction not easily calculable based upon the measurable economic harm to a party to the contract after the fact. In those cases, the clause, called a "liquidated damages" clause must be a reasonable attempt within reason ex ante to quantify the harm caused by a breach of the contract triggering the liquidated damages clause. If the termination of a lease for a violation of a lease term involving a tangential personal life activity unrelated directly to the premises, and has the effect of making a tenant subject to liability for the balance the lease payments, it might be disqualified as a penalty which is void as contrary to public policy. On the other hand, if it simply operated to terminate the lease as the next convenient juncture (perhaps the next of the next month more than 30 days from the violation) with no financial penalty involved, it would probably be valid. | 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. |
Is it legal to redistribute a digital copy of a library book? My library provides two ways to get a digital copy of a book: If the book is already digitized, then for a reasonable fee they allow to download it in PDF. For another very reasonable fee, they allow to use my own camera and make photos of the book. There is an old book (copyright is already expired), which I would like to share over the internet. Is it legal to just get PDF from them and share it, or should I create my own copy with a camera, or only the library has the right to distribute these copies? Update: I am located in Belarus. However, I would like to understand the international practice for this. | You don't say where you are located. Copyright laws are different in different countries, am going to assume US laws. Under US law, a faithful digitization of a book does not get a new copyeight, see Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998) and thw Wikipedia article about that case (On the issue of mrequired originality, see also FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE COMPANY, INC. (No. 89-1909.) (1991) which dealt with copying a telephone directory.) The court in Bridgeman held that: It is uncontested that Bridgeman's images are substantially exact reproductions of public domain works, albeit in a different medium. The images were copied from the underlying works without any avoidable addition, alteration or transformation. Indeed, Bridgeman strives to reproduce precisely those works of art. ... The mere reproduction of a work of art in a different medium should not constitute the required originality for the reason that no one can claim to have independently evolved any particular medium.'" As discussed above, the law requires "some element of material alteration or embellishment" to the totality of the work. At bottom, the totality of the work is the image itself, and Bridgeman admittedly seeks to duplicate exactly the images of the underlying works. ... [O]ne need not deny the creativity inherent in the art of photography to recognize that a photograph which is no more than a copy of the work of another as exact as science and technology permit lacks originality. That is not to say such a feat is trivial, simply not original. The more persuasive analogy is that of a photocopier. Surely designing the technology to produce exact reproductions of documents required much engineering talent, but that does not make the reproductions copyrightable. The Bridgeman court was actually construing UK law, but the earthlier phase of Bridgeman i and the SCOTUS case of Feist show the same result under UIS law. Note that books and other works published before 1925 are now out of copyright in the US. Copyright can also be lost ion other ways, such as publishing without a copyright notice before the effective date of the 1976 act, and failure to properly renew a work published in the US before 1964. Assuming that the book is not under copyright, neither the library nor anyone else has a US copyright in the PFD. Unless the library imposes some additional restriction by contract, any such PDF may be copied or shared freely. It may even be sold or rented. And the validity of such an additional agreement would be questionable, but since the question does not mention such an agreement, I will not go into that further. | You are framing it wrong. It is not that "they have put a barrier" to public domain information, it is that they have added an additional source of that information. The new source has a barrier, yes, but that does not prevent you from accessing the same information elsewhere. If you own a copy of some public domain data, you are not allowed to prevent other users from accessing other copies (by claiming copyright infringement or the like); you cannot even prevent people from doing copies from the copies you did provide them. But you are not forced to allow other users to access your copy. Consider the logical conclusion if that were the law. The moment that you downloaded some public domain file into your computer, you would be forced to give access to your hard disk from the internet, isn't it? Would you need to leave your home door open if you happened to have a printed copy of the text there? Of course, there is a need to discriminate between "public domain" (without licence) and "not public domain but open licence" (BSD, CC, GPL, etc.). In the later case the licence could be tailored so that the work could appear in archive.org but that it would be illegal to provide it with the business model of Academia.edu1. But that would be possible only for works not in the public domain. 1 To be decided by a judge on the basis of the wording of the licence and jurisdiction. | I presume the input is text: "my original text" is assumed to mean you wrote (created) the text. That means that you hold the copyright to the text, and only you can authorize a derivative work (such as a synthesized recording). Therefore, you hold the copyright to the recordings as well. The crucial consideration governing that right is that you "created" the work, meaning that there is a modicum of creativity. However, if you did not create the text and your only function is to host an automatic process where users can create a synthesized recording, then whoever created the text has the right to the text and derivative works (i.e. the synthesized output). Automated processes like (unassisted) OCR or wav-to-mp3 conversion would not count as being "original", nor would automatic text-to-speech, so you don't gain copyright just from making an automatic work-creating tool available. On the assumption that the conversion involves a component of Chrome, you can use the service per the terms of service, though you cannot "reproduce, duplicate, copy, sell, trade or resell the Services". This might limit the extent to which you could make this conversion available to others, depending on how, exactly, you could do such a thing (does it duplicate the service?). As they say, Google owns all legal right to the Services, but Google obtains no right from you for any content created through their service. There is no restriction in the TOS against using the service for commercial purposes. Even if there were, that would not assign copyright in the recording to anyone else, it would just mean they could sue you for violating the TOS. | Data, as it happens in law, can also be owned. That's why we have a discipline called "Intellectual Property". It is a "thing" - like other properties like cars, houses etc., someone owns it. Now, does the transfer of a computer also includes a transfer of data ownership stored inside the computer? Practically speaking, this clause is very unlikely to be included in the agreement when a computer is sold. It didn't explicitly say "yes" (you may use anything you find in the hard drive), but it didn't explicitly say "no" either, hence the question. Looking at data, we can list a few legal concepts related to them: Data collection Data storage Data usage Copyright The exact details vary by jurisdiction, but in general: Data must be collected through legal means Data must be stored in a secure manner to protect the data subjects Data must only be used by purposes agreed during data collection by the data subjects Copyright is not transferrable without signatures "License to use" is not transferrable either Example 1, let's say a software is installed in the computer, with an appropriate license. This license was purchased by the original owner, therefore the software company licensed him to use the software, not you. The agreement does not have your name on it. Example 2, the original owner is a photographer and have some beautiful photos stored on the hard drive. By virtue of Copyright, he is the author and copyright owner of these photos. There has been no signed document describing the transfer of copyright ownership to you, nor license you to use these photos in any way. Example 3, the computer belongs to a company, and client information is stored on the hard drive. By transferring the computer to a third-party without wiping the drive clean, the company fails to use reasonable measures to protect the data of their clients. If somebody uses this data, then he is using data collected through illegal means, and can be prosecuted. A counter example would be someone transferring ownership of the computer for the purpose of transferring the data inside. Note this is different: it is clear to both parties that the purpose of the exchange is to obtain the data stored inside the medium. The ownership of the storage medium and the data inside are separated. Likewise any intellectual property associated to a physical object. When you go to the store and purchase a Bluray of a movie, you buy the physical ownership of the plastic disc + permission (license) to view the contents of the disc in a private setting. You do not buy the copyright of the movie even though it is in your hand. To conclude, the answer is No - transfer of ownership of a storage medium has nothing whatsoever about the transfer of ownership of the data inside. | It doesn't work, just like transferring the copyright to a young person to make it last longer doesn't work. In places where the length of copyright depends on the death of someone, it always depends on the death of the author. You can transfer copyright, but you can't change who is the author. If I write a book, and some copyright law says the copyright ends 70 years after the death of the author, then it ends 70 years after my death. It doesn't matter who owns the copyright. PS. That dead person has heirs. If there are no relatives alive, then the government of their country will inherit everything (in most countries, there might be exceptions). Your plan fails for that reason as well. PS. See "Just a guy's" answer for another, completely different, reason why this scheme doesn't work. | An album from 2011 is pretty clearly going to be protected by copyright. Downloading such a work without permission would be copyright infringement, and therefore unlawful. However, it is not a crime in the US. If the copyright owner or the owner's agent learns of the download, you could be sued. Whether the owner would choose to bring suit is hard to say. However, for some content the Internet Archive has a program where a digital copy can be "borrowed" or "checked out" for a limited period of time. This is supposed to work like a library. The IA has made arrangements that will authorize this, or it is supposed to have done so. You only retain use of such a download for a limited period of time. | What you're describing is generally permissible in the United States. The photographer has copyright in the photograph itself, not in the items photographed. This means that they have copyright in the way that they composed the photograph -- what background they placed it against, lighting, camera placement, etc. -- but not in the ancient manuscript. If you are strictly transcribing the text of the script, you're not infringing on anything that's copyrighted. If you make a sketch, there's more potential for infringement, but I suspect that you would not be working to faithfully copy the angles of the shadows as much as you would working to faithfully copy the image and condition of the artifact. Even if you were, calling that a copyright infringement would require that the image truly be copyrighted, and I'm not 100 percent convinced that they would be. Copyright is only available to original works of authorship, and that means that the author has to make some meaningful efforts to create something new out of the copyrighted elements discussed above. But what has the photographer done in that picture of the Coronation Oath? It appears that they've photographed the book head-on, as it's displayed by the museum, with lighting as provided by the museum, in an effort to recreate the display one would see while visiting the museum. Is that really sufficiently "original" to merit copyright protection that could be invoked to prevent someone from drawing a duplicate? I doubt it. But that picture of the Ge'ez book may be different. Someone appears to have grabbed the book, opened it up under weird lighting, kept their hands in the photograph, and otherwise actually composed a photograph that may not be particularly artistic, but is nonetheless difficult enough to duplicate that it can be considered original. So let's be generous to the copyright trolls and assume that the sketch you're imagining is protected. Even then, that only raises the question of whether the copy is a fair use. You haven't said anything about how the hypothetical copier would be using these materials, but I have a hunch that the idea isn't to launch a multimillion dollar merchandising enterprise. If the idea is more academic or cultural, you'd have a better claim to fair use. Again, you can review this fair-use explainer to get a better idea. | Can he use another commercial product that is copyrighted, e.g. a map of a location (the map is a political map and has nothing to do with trees), for his tree research purposes, if such a map won't be part of the book he works on? Yes. Copyright protects particular expressions of ideas and knowledge, not the ideas and knowledge themselves. Using a map for research purposes when the map or a modified version of it does not appear in the final work does not make the final work a "derivative work" covered by copyright. |
Sworn statement from Chief of Staff on President's intent:isn't that hearsay? Trump made two tweets (here and here) which (on a surface reading) would seem to be him ordering the complete declassification of all documents related to the Russian investigation. In response, several FOIA suits were filed demanding those unredacted documents. The DoJ responded "not so fast, that's not what Trump meant", and now Mark Meadows, Chief of Staff, has declared under oath that Trump told him that wasn't what Trump meant. My question is: isn't this hearsay? IANAL, but this doesn't seem to fall under any of the hearsay exemptions. | 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. | Bob should certainly expect to be impeached by whichever side his testimony injures. Their attorney will confront him with the transcript of his previous testimony, and likely read it out loud for the jury to hear, and force him to acknowledge that he said something different before. This is pretty standard trial tactics. Bob would not be treated as formally admitting that he committed perjury, though I think it's fair to say that he has effectively made that admission. One side will treat him as having lied the first time; the other will treat him as lying now. It's possible that he will have some explanation for the discrepancy -- he was high, he has memory problems, he misunderstood the question -- but in your hypothetical, the explanation would have to be pretty amazing to justify such a complete reversal. | Vice President Aaron Burr was indicted in his last year as Vice President in both New Jersey and New York. The crime was killing Alexander Hamilton in an (illegal) duel. His solution? Simply don't go to those states. Eventually the charges were dropped on technical reasons. But it was nevertheless clear that no one considered it a particular problem for a sitting Vice President to be indicted in multiple states at a time, or even just one. This bit of history is even mentioned in the revised DOJ opinion referred to in Putvi's answer. Ultimately that opinion decides that the comparison between a Vice President and President is apples-to-oranges nonsense—their relative levels of power, importance, and constitutional stature are radically different—, and no substantive inferences could be made from a VP's indictability to the President's. Of course, this DOJ opinion is just the opinion of DOJ lawyers. It is not a court opinion, nor otherwise binding. It does strike me as well-written and logically strong, but it is wholly untested in a court of law (SCOTUS or otherwise). It is simply their advice on what the best course of action the DOJ can take is, given their particular function and powers within the US government and overall constitution. The main conclusion being that those functions and powers are inadequate for the DOJ to decide if it is constitutionally sound to indict a sitting President (that's a job for the judiciary), and so simply advises that they avoid that powder keg and never do so. The opinions actually do specifically hold that it might be constitutional in the right situations; they simply conclude they cannot and should not be the ones deciding if a particular case qualifies or not. For a more definitive answer, you may have to wait for various court cases against President Trump and his administration to make their way through the system. In several of them the President's/White House's lawyers have argued for absolute immunity on all criminal matters, state or federal. The judges have, to date, seemed disinclined to agree; many seem straight-up shocked that this is being seriously proposed to them. But those cases are still in progress, so we can at best make random guesses at what the actual opinions will be, and it is even harder to know what will happen on the almost-certain appeals up to the Supreme Court. | 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. | There is no exception arising from the Espionage Act, indeed in Gorin v. US, 312 U.S. 19, one of the holdings is that "In a prosecution under §§ 1(b) and 2 of the Espionage Act, the jury determines whether the acts of the defendants were connected with or related to the national defense under proper tests laid down by the instructions". This does not mean that the prosecution will not be eager to avoid the possibility of jury nullification and may hope for a bench trial. Here is the transcript of the jury verdict in the trial of the Rosenbergs, and another report of an espionage conviction in a trial by jury. There is no evidence that Assange "would not be afforded a trial by jury" if he requested it. | Where the President explicitly tells a newspaper that they should reveal their sources. Is this not illegal in the US? It is not illegal. Well, it would be a U.S. Attorney, rather than the President himself. You're thinking of shield laws, but no such law exists at the federal level. Moreover, although some people might think that the First Amendment ("freedom of the press") would protect a journalist in such a case, the Supreme Court has held that it doesn't, though the government is required to "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest". So if a reporter were subpoenaed in federal court to reveal a source, and they couldn't convince a court to quash the subpoena under the Branzburg test, they'd have to either reveal their source or be held in contempt. In practice, many reporters have chosen the latter, and served time in jail rather than reveal the source. For instance, Judith Miller. There've been a number of proposals to create such a federal law, but so far Congress hasn't seen fit to do it. According to the Wikipedia article, every state except Wyoming has some sort of shield protection for journalists, either in statute or case law, though the protections are not necessarily absolute. So a state court or prosecutor would find it much more difficult to enforce such an order. | For Mr. Petersen, the questions in general should have been elementary. The fact he did not know them is actually quite deplorable. To your questions specifically: Should Mr. Petersen, as a Juris Doctor, know of those things in his sleep? This is the wrong question. The question is: should an individual who has accepted a nomination to serve as a federal judge on the U.S. District Court know of those things in his/her sleep? The answer is unequivocally yes. One could almost argue - one would likely be scoffed at, but one could - that an appointment to a higher court, the U.S. Circuit, could get away not knowing those things 'in his/her sleep,' because appeals courts would not deal with, e.g., abstention doctrines or whether to admit expert scientific testimony, as often as a trial court does. Simply put, lawyers should at least have heard of those things (he looked/sounded absolutely dumbfounded at the words that were being said to him), litigators should know them, and federal trial court judges absolutely need to know those things to do the job. Is his excuse valid when he says that he has no background in the field(s) (he mentioned litigation once) the terms are corresponding to? If he was just some lawyer talking to some guy at a bar, sure, totally valid. If someone is a corporate M&A or project finance attorney, sure, don't expect him to win any trial court vocabulary contests. However, when sitting before a panel of U.S. Senators carrying out their Constitutional duties of "advice and consent" on presidential appointments, not knowing those things can, should, and indeed did end in complete humiliation for the person ignorant enough to try and go through with that. I'm sure his hearing was scheduled some time in advance. The fact he obviously made zero attempt to know anything is actually insulting to everyone involved. For context, I wrote a motion in limine at my first internship. If I live to be 1,000 and never step foot in a court room, I'll still be able to say more about a motion in limine than "I would probably not be able to give you a good definition right here at the table." | After the edit of the question: Deceased defendants are not normally put on trial. Before the edit of the question: The ability of the US President to start military operations is a somewhat murky issue. Congress has the power to declare wars, the President is the commander in chief, and the War Powers Resolution complicates things. But this is not really an issue because Congress approved the operation. As far as domestic US law, the war was legal. I'm not aware of any competent legal authority deciding on the invasion being a crime of aggression under international law. The practical problem here is that such trials mostly happen under UN auspices at the end of a world war, putting the defeated side on trial. The UNSC would probably be involved, and the US is a veto power. Note also that Iraq had probably violated the ceasefire agreement from 1991 ... Which leaves the domestic issue of lying to the American public and especially to Congress. While perjury in a congressional hearing may be a crime, proving it would require a legal judgement of the state of knowledge at the time the supposed perjury happened. To a large degree, the US government deceived itself before it gave testimony, and being factually wrong is not perjury if the witness believed what he or she said. |
Is wearing ACLU's "Let People Vote Pin" to the polling place considered electioneering? For context, the region I'm in is Sangamon County, Illinois. I ordered an ACLU pin from their shop. I expect it to arrive before November 3rd and I am excited to wear it at the polling place. I am, however, not certain if this is permitted under the law. I checked on the Electoral Judge's manual for clarification and I found this: Electioneering is defined as working for, against, or in the interest of a candidate, party, or proposition. Electioneering is not allowed in the polling place or within the campaign free zone (a distance of within 100 horizontal feet of the room). No one is permitted to wear a campaign button, display political literature, or engage in any political discussion within the restricted area. So I interpret this as putting me in the clear. The pin is unrelated to a candidate, party, or any proposition on my region's ballots. I wanted a concrete illustration of the law so I did a search and found within the Illinois Compiled Statutes: 10 ILCS 5/7-41 (c) No person shall do any electioneering or soliciting of votes on primary day within any polling place or within one hundred feet of any polling place, or, at the option of a church or private school, on any of the property of that church or private school that is a polling place. Election officers shall place 2 or more cones, small United States national flags, or some other marker a distance of 100 horizontal feet from each entrance to the room used by voters to engage in voting, which shall be known as the polling room. […] […] This subsection shall be construed liberally in favor of persons engaging in electioneering on all polling place property beyond the campaign free zone for the time that the polls are open on an election day. It's striking that electioneering isn't defined within the section, so I reviewed 10 ILCS 5/0.01 et seq. and found section 5/7-4. Definitions does not provide clarification about electioneering. Okay, maybe it’s a common sense term. I checked Black’s Law Dictionary 5th ed. and also found no definition of electioneering. Well maybe there's relevant case law? I reviewed West's Smith-Hurd ILCS Annotated and found there were no reported cases related to 10 ILCS 5/0.01 et seq. Last I checked West's IL Digest and found no relevant case law. There were surprisingly only 5 cases related to elections, none of which had anything to do with electioneering. So I imagine if a judge were to make a determination about whether displaying this pin within a polling place is electioneering, they would have to refer to a dictionary definition. From Webster's: electioneer verb elec·tion·eer | \ i-ˌlek-shə-ˈnir \ electioneered; electioneering; electioneers Definition of electioneer intransitive verb : to take an active part in an election specifically : to work for the election of a candidate or party Well this is incredibly unhelpful! While this pin is not working for the election of a candidate or party, my very presence in the polling place is taking an active part in an election. So in summary, would displaying this pin in a polling place be considered unlawful electioneering? | A poll worker was fired for making people turn a Black Lives Matter T-shirt inside out before voting. Since it does not advocate for a candidate, a political party or something explicitly on the ballot it is not electioneering in Tennessee. | I am presuming at this point that no one is "the President elect" in the eyes of the Constitution until the electoral college votes in December. In the 20th amendment, the beginning of the sentence is : If, at the time fixed for the beginning of the term of the President, the President elect shall have died... So, that means January 20th, according to section 1 of the same amendment. At that time, not only have the electors already voted since at least a month, but Congress supposedly has certified the election of the dead guy and his running mate 14 days prior. That's the time when someone is or isn't president-elect in regards to this amendment. That's for your first sentence. Now for the rest, and taking your example of the 2020 election, if Biden had died between November and December, the options available to the Electors in each state are different. Some will be able to vote for someone else than Biden for president, possibly someone named by the DCCC, but many Electors in different states will not have that option. The way I see it, there's two options. Either there are no (or almost no) faithless Electors, then the Biden/Harris ticket gets certified on January 6th (what could possibly go wrong 👀), then pursuant to the 20th amendment Harris gets sworn in as the President on January 20th. Or, a lot of the Electors who can legally be faithless, get faithless, then the democratic electoral votes are split, no ticket gets to 270, which triggers a contingent election by the House of Reps (and the Senate selects the VP). Who they elect is anyone's guess. So, if you allow me a bit of presumption as to what you meant, you seemed to imply that Electors voting for a dead guy would be absurd, but in fact it seems like it would be the safest scenario for their party. | Entrapment is when a law-enforcement organization, or other parts of a government working with an LEO, entice a person to violate a law, and then prosecute the person for that violation, usually arresting the person first. Note that this definition of "entrapment" is US-specific, and does not apply in all other countries, perhaps not in any other county. But then, the question is tagged for California. As the school presumably does not intend any criminal prosecution, these actions are not legally entrapment, even if they are morally similar. Entrapment is not itself illegal even when it leads to criminal charges. That is to say, the police and prosecutor cannot be charged criminally for engaging in entrapment, nor sued for money damages by the person entrapped. However, entrapment can be a defense. If a person charged with crime can show that the crime only occurred because of entrapment, that will generally be grounds for acquittal. In addition, many people consider entrapment to be morally and ethically wrong. Generally, for a situation to be entrapment legally, a person must not only have an opportunity to break a law, but must be actively persuaded or enticed to do so, and the idea must come from the entrapper. However, the question says that the school "has a strict policy against using social media during school time". If the students retain the laptops outside of school hours (as they may well do) it might be fine with the school to use social media during those times, so perhaps school authorities don't think a blocker is needed. In any case there is no legal requirement for the school to install a social media blocking program, even if use of the school-issued laptops to access social media is against school rules at all times. A parent could install a blocker, unless school rules for use of the laptops prohibit doing so. Of course, in later life, people will almost surely encounter situations where they could do something unlawful or forbidden, but should not. An employer might provide access to computers, but forbid using them to access porn, even though no blocking software is in place. It is also not a bad idea to check school-issued laptops for possible privacy violations. There have been cases where school IT departments or contractors routinely activated built-in web-cams, ostensibly as an anti-theft measure, but in fact observing private situations, including inside the student's home. | This is a super complex question and no one really knows the answer yet. Orin Kerr is probably the leading scholar on this question, and he generally argues that forced decryption of one's own device is not a Fifth Amendment violation. As I understand it (and oversimplifying by a lot), one key piece of his position is that requiring you to put in your password is a statement about your knowledge of the password itself, not about the contents of the machine into which you are entering it. And because your knowledge of the password for your own devices is presumed, an exception for "foregone conclusions" would leave this compulsion unprotected by the Fifth Amendment. You can read one of his explanations here. The Eleventh Circuit disagreed with that approach, but a California judge recently reached a conclusion similar to Kerr's. This will probably by a question for SCOTUS before too long. | Yes, so long as you are still a US citizen, it does not matter if you no longer maintain residence in the United States. If you no longer have any sort of residence that can be claimed as a current residence, you simply register at whatever the last residence you used was when you lived in the United States (even if someone else lives there now). You would then have an absentee ballot mailed to you overseas. However, if you don't maintain any sort of residence in the United States, you will only be eligible to vote for federal offices (president, senate, house). You won't be allowed to vote in state or local elections. The keywords you'll need for voting are: UOCAVA, which is a program that allows for easier voting overseas (in some cases the ballot can actually be emailed to you and you are only responsible for printing it out, filling it out, and mailing it back). FPCA, which is the form you fill out. It actually doubles as a registration and an absentee ballot request, so you only have to fill out one form. The absentee request is good for all elections in the calendar year it is submitted, so you only have to fill it out once for both the primary and the general. | Assuming that all of these locations are in the same state, this is not an issue of federal law and is not governed by the U.S. Constitution. The geographical jurisdiction of state and local law enforcement officers is exclusively a matter of state law and has no single correct resolution. Different states handle the issue differently. Even if state law or the state constitution prohibited the arrest, this violation of state law or the state constitution, would not give rise to a federal claim for violation of civil rights under 42 U.S.C. § 1983, which may vindicate only federal rights, and could not form a basis for a collateral attack on a state court conviction in a federal court habeas corpus petition which is likewise limited to vindications of federal law rights. Any remedy would have to be secured in the state court system invoking state law rights (assuming for sake of argument that state law provides such a remedy), or in a diversity lawsuit in federal court applying state substantive law, if the defendant was from another state and the amount in controversy was in excess of $75,000. | Authorizing someone else to vote on your behalf (either at your direction or at their own discretion is called Proxy Voting. It is extremely common in elections within corporations and other organisations; it is extremely rare in governmental elections. Each state of the US determines the rules governing voting so there is no blanket answer. For California the answer is no - from Where and How to Vote the voter must cast their own ballot, either in person or by mail. | 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. |
Does information related to client IP address is been allowed as per GDPR policies. Without asking user's location We need implement user's nearby store locator. Where we have code to get user's ISP location from where the client request is been triggered. But getting lat-long & city details by checking client browser IP address. Even if user don't allow website to share user's current location. Does above doing violates any of GDPR policy? Please share your views. Thanks. | You are processing the users IP address in order to carry out the translation to a physical location (see my comment for the technical issues with that) and an IP address is most certainly considered personal information, so yes under the GDPR you are going to need a published policy because you are both data controller and data processor. You need to inform the user of what you are doing, and you need to tell them of the legal basis for the processing (there are several under the GDPR, of which consent is only one - but in your case its going to be the easiest to justify). If you use a third party service for the location translation, you also need to inform the user of that and make available the third party services data processing policy. | If GDPR applies, then no one can opt out. If it doesn't apply, then an IP block is superfluous. Whether GDPR applies is determined by Art 3 GDPR. For this, we must distinguish where the data controller is operating from. It is irrelevant where the site is hosted, but primarily relevant where the data controller (your colleague) has an “establishment”, e.g. where he resides or typically works from. Per Art 3(1), GDPR applies to all processing activities in the context of an European establishment, regardless of where the users are. So if your colleague were running this site from Europe, they wouldn't be able to circumvent GDPR by blocking European users. However, if your colleague is running this site from outside of Europe, then Art 3(1) doesn't trigger. Per Art 3(2), GDPR can apply to processing activities where there is no European establishment. There is the Art 3(2)(a) “targeting criterion”: if your colleague “offers” goods or services to people who are in Europe, regardless whether paid or gratis, then GDPR applies to all processing activities related to this offer. I'll discuss this more below. There is also the Art 3(2)(b) criterion: if your colleague monitors the behaviour of people that occurs in Europe, then GDPR applies. For example, an app collecting geolocation information or a website creating interest profiles for ad targeting might trigger this criterion. An IP block can help to establish that no offering/monitoring related to people who are in Europe is happening, but it might not be necessary. It may be worth talking a bit more about the targeting criterion. The GDPR explicitly says that mere availability of a website in Europe doesn't imply that GDPR would apply. Instead, it is necessary to establish the data controller's intention – are they soliciting users from Europe, or otherwise expecting that people from Europe might use those services? Recital 23 gives a couple of non-exhaustive factors that can be considered here, for example: the site uses a language or currency used in the EU but not used in the controller's own country the site mentions users or customers from Europe, e.g. in testimonials This means that a lot of US websites, written in English or Spanish, only mentioning payment in USD (if any), not mentioning any European countries, will not be subject to GDPR. Then, occasional European visitors are irrelevant. It wouldn't be necessary to IP-block potential European users. However, such an IP-based block would help establish that the data controller really doesn't intend for those services to be offered to people who are in Europe. My personal opinion is that it's wasted effort to block users from foreign countries in case their foreign laws claim to apply, but if such a block brings peace of mind that might be worth it. While geoblocking might not be necessary, is it sufficient? There is no clear guidance on this subject, but it seems to be generally accepted that IP-based geoblocking is fine, even though it is trivially circumvented using VPN services. Of course, if a website were to block European IP addresses but were to also advertise that people in Europe can use their services via VPNs, that would probably still be an “offer” and might defeat the point of doing any geoblocking. The Art 3(1)(a) targeting criterion is most easily applied to things like ecommerce where physical goods are shipped to the customer in return for payment – so essentially whenever the data controller participates in the EU Single Market. This is roughly similar to the concept of a Nexus in US tax law. But in principle the targeting criterion can also apply to other kinds of websites or apps such as blogs, even if they are gratis. GDPR does not just apply to for-profit commercial activity, and doesn't distinguish between controllers that are entities/LLCs and controllers who are natural persons. Things are slightly more complicated due to the Art 3(2)(b) monitoring criterion and the pervasive use of online trackers on websites, but this aspect of the GDPR is difficult to enforce and frequently ignored. In this answer, “Europe” means the European Union (EU), the European Economic Area (EEA), and the United Kingdom (UK). Note that countries like Norway are covered by GDPR, whereas Switzerland is not. Of course, the GDPR is not the only privacy law relevant internationally. | By which law I am enforced to share my personal details (such as my full name) on forum publicly to on-line people which I even don't know (when commenting on random posts)? Contract Law. Google have made it a term of the contract that you use your full name. You can: contact Google and negotiate a change to that term, accept that term, choose not to enter the contract. so I can enforce on my privacy rights without removing my Google Plus account? As a person subject to UK law, your privacy rights involve limiting who and in what circumstances Google can divulge personal private information to. Your name is not personal private information; things like your medical history and bank balance are. Aside from that, you do not have a right to privacy. Anything you do or say that is visible or audible from a public place (like the internet) or a private place where the person in control of that place does not insist on your privacy (i.e. almost everywhere that you are not in control of) is public! | Most likely yes if you are subject to UK or EU laws: The EU ePrivacy directive and implementing laws such as PECR in the UK require that you obtain consent before accessing information on a user's device, unless that access is strictly necessary to perform a service requested by the user. Cookies and similar technologies such as LocalStorage are stored on the user's device. Analytics are not strictly necessary to display a website. Thus, you need to obtain valid consent before setting any analytics cookies. GDPR and ePrivacy/PECR have some interactions: Even though the cookies might technically be set by GoSquared, you as the website operator are responsible for compliance. You are the data controller, the third party analytics are usually a data processor who only process data on your behalf. You must ensure that the data processor is compliant. Even if they were a joint controller you'd be responsible for what happens on the website (relevant precedent is the Fashion ID case). While ePrivacy originally had a fairly weak concept of consent (e.g. “by continuing to use this site, you consent …”). However, the GDPR updated the definition of consent, so that valid consent must be freely given, informed, actively given, and specific. If you set cookies for different purposes in addition to analytics, users should be able to give or withhold consent for analytics independently from other purposes. Since consent must be actively given, consent is never the default, e.g. pre-ticked checkboxes are not compliant (relevant precedent is the Planet49 case). Like Google, GoSquared stores data in the US. You are causing personal data to be transferred into the US, which is an international transfer. Before it was invalidated earlier in 2020, such transfers were easy to do under the Privacy Shield adequacy decision. Now, such transfers are only legal if you sign SCCs with your data processor, and your risk assessment indicates that your user's data is sufficiently safe there, despite your processors potentially being legally unable to comply with the SCCs. Fortunately for you the UK's ICO has taken a more industry-friendly stance on this matter than other countrie's data protection agencies. Why do so many websites use Google Analytics (GA) without requesting proper consent? A variety of potential reasons: They are actually non-compliant. After all, GA is not GDPR-compliant in default settings, and Google doesn't do a good job of providing essential information. Many data protection agencies have indicated that cookie consent enforcement is not their focus. GA can be used without using cookies/LocalStorage/…, and thus without requiring consent under ePrivacy or PECR. The websites might not be subject to EU or UK laws such as ePrivacy. | 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. | 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. | I don't believe GDPR makes a distinction between 'real life' and 'online'. It's all real life. You can tell anyone that they don't have consent to keep your personal data, but that doesn't mean they always have to delete it. There are six lawful bases for processing of personal data, so if an organisation is using and can justify one other than consent then they don't necessarily have to delete your data when they ask. The six bases are listed by the UK Information Commissioner's Office: (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/#ib3 | It is not different. But one company can decide to approach compliance differently from another. Here, TomTom has chosen a fairly safe/conservative interpretation, whereas Google and Apple decided that more data collection is appropriate. A “find my device” style functionality appears to be entirely unproblematic if the user books that particular service (regardless of whether the service is paid or gratis) and provides consent for the location data collection. The legal basis for such a service could then be Art 6(1)(a) consent or Art 6(1)(b) necessity for performance of a contract to which the data subject is party. Personally, I believe that Google is not sufficiently transparent about how Find My Device works, but that TomTom could provide a compliant service if they wanted to. That TomTom doesn't offer this service primarily shows that they don't think developing this service is worth it. Wiping a remote device is unrelated to this issue and doesn't seem to provide GDPR challenges. At least in a business context, remote wiping may be an appropriate security measure and may then even be mandated by the GDPR (e.g. see Art 24 or Art 32). |
U.S. v. Cruikshank (1876) decision Background According to my textbook: In Cruikshank ... the [Supreme] Court ruled that voting rights remained a state prerogative unless the state itself violated those rights. So long as the civil rights of former slaves were being violated by individuals or private groups (including the Klan), that was a state responsibility and beyond federal jurisdiction. Therefore, the Fourteenth Amendment did not protect citizens from armed vigilantes, even if those vigilantes seized political power. The Court thus gutted the Fourteenth Amendment. (America, A Concise History) Emphasis mine. This does not make much sense to me. This decision is in the context of the (very violent) intimidation of blacks especially by ex-Confederates followed by a Democratic political coup. From what I understand, the Democrats disenfranchised African Americans. The Supreme Court then ruled that it was the state's responsibility to ensure that its citizen's rights were not infringed upon. First contention Firstly, why would it be the state's responsibility to enforce the Fourteenth Amendment, which is part of the Constitution? The Fourteenth Amendment states, The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. (Section 5 of the 14th Amendment) Does this, not to mention that it is a Constitutional amendment, not imply that issues pertaining to the Fourteenth Amendment, such as equal access to voting (Section 2 of the 14th Amendment), are under federal jurisdiction? Second contention If "private groups" like the KKK took political power, would the governments that they became part of not be violating former slaves' civil rights (as opposed to just private individuals)? Therefore, it would be that state's duty under the Fourteenth Amendment to address the illegal actions of actors within its jurisdiction. However, if the state fails to address these actions, would it not then become the federal government's jurisdiction since the state failed to enforce the Fourteenth Amendment within its borders? Would the plaintiff have needed to sue the state for failing to enforce the Fourteenth Amendment in order for it to be under federal jurisdiction? Closing I am not very fluent in law things, so please excuse me for any misused vocabulary (like "jurisdiction"), nor do I have a thorough understanding of federal vs. state jurisdiction or Constitutional law. | First, the "state action" requirement is the norm for most civil rights violations. The U.S. Constitution is structured in such a way that it is designed solely to protect people from government overreach. Statutes engaged by legislative bodies at the state and federal level protect people from misconduct by private parties. For example, ordinary state criminal laws would ordinarily forbid private parties from acting as armed vigilantes to prevent people from doing pretty much anything. And, if armed vigilantes were doing something that government officials and politically powerful people in the state didn't approve of, they would have been arrested, charged and convicted of crimes by the police. The trouble is that in the U.S. legal system, if the government decides not to enforce its criminal laws, you are limited to bringing civil lawsuits against the offenders for damages or injunctive relief (e.g. a court order ordering the vigilantes to stop misbehaving). But, as a practical matter, private lawsuits are not very effective when the courts and government officials are determined to thwart you and so are a significant share of the members of any jury pool. (This is one of the reasons, as a matter of logic, for the Second Amendment, because you need some way to protect yourself from crimes if the government exercises its right to do nothing to protect you from criminals even when it is capable of doing so.) The U.S. Constitutional and legal system requires the good faith of the elected officials in state and federal government to work properly. But, if majorities of voters under whatever flawed electoral system is currently in place are bound and determined to suppress a political minority, the democratic features of our political system make it very hard to intervene to protect that political minority. As you note, the 13th, 14th and 15th Amendments to the U.S. Constitution (collectively, the Civil Rights Amendments) all empower Congress to enact legislation enforcing those provisions in addition to any self-executing effect that they have, although the exact scope of that enforcement power was at the time a matter of some legal debate and in any event often wasn't exercised by Congress (which by then had white, anti-civil rights members in many House and Senate seats). But, in U.S. v. Cruikshank a very racist U.S. Supreme Court held that the state action requirement applied not just to self-executing aspects of the Civil Rights Amendments, but also to the 1870 Enforcement Act adopted by Congress during Reconstruction with an intent to stop precisely the kind of armed private action that occurred. It held that the 1870 Enforcement Act as applied to private parties was unconstitutional. (Around the same time the Slaughterhouse cases gutted the privileges and immunities clause of the Constitution, and Plessy v. Ferguson gutted the 14th Amendment with the "separate but equal" doctrine.) However, if the state fails to address these actions, would it not then become the federal government's jurisdiction since the state failed to enforce the Fourteenth Amendment within its borders? No. The U.S. Constitution doesn't provide much protection at all against state inaction. (The human rights tribunal for the Americas has faulted the U.S. for violating human rights by not having protections against this kind of conduct which all Latin American countries do have.) Would the plaintiff have needed to sue the state for failing to enforce the Fourteenth Amendment in order for it to be under federal jurisdiction? No. The plaintiff would have no remedy, which was basically the intended and expected effect of U.S. v. Cruikshank. The justice of the U.S. Supreme Court weren't any more stupid then than they are now. They just had different values and part of those values was the belief that it wasn't the place of the federal government to curb the acts of groups like the KKK and Jim Crow laws (in part to prevent a re-ignition of the Civil War in a post-Reconstruction period when white supremacists were more powerful than ever in the states that had previously fought a war with overwhelming support from majorities of people entitled to vote to preserve slavery). The Civil Rights Amendments were shoved down the throats of the Southern states as a condition for readmission to equal standing in the Union free of military law and civil disabilities during Reconstruction. So, they ratified those amendments under duress and then did everything they could to reinstate the pre-civil war system as completely as possible which they had still believed in despite losing the Civil War (and indeed, modern political figures like Roy Moore, a previous Alabama Supreme Court Justice, still want to return their states and the nation to the ante-bellum South, and argue that slavery was as much good as it was bad for the slaves and for the South). It took a century and two World Wars and the Korean War, in which African-Americans served in the military for the U.S., and a thriving post-war economy, for those attitudes to change. Ultimately, in light of this ruling, in the 1960s, the Civil Rights Acts were adopted by Congress to regulate discriminatory conduct by private parties, not with the justification and authority of enforcement powers of the Civil Rights Amendments, but instead based upon the interstate commerce clause whose scope had been dramatically expanded during the Great Depression in cases like Wickard v. Filburn, a choice which a pro-civil rights U.S. Supreme Court gave its stamp of approval in the Heart of Atlanta Motel case. | The 24th Amendment states: Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. Section 2. The Congress shall have power to enforce this article by appropriate legislation. But, no one in incarcerated in prison (and hence loses the right to vote) merely for failing to pay taxes. Usually, one is incarcerated in prison on tax charges for fraud in connection with one's tax obligation which is different from failure to pay. (A misdemeanor conviction does not result in the loss of an ability to vote, even while in jail.) Refusal to pay, on grounds other than lacking the money (inability to pay isn't a criminal offense), when done without full compliance with other tax return filing obligations, is tantamount to tax litigation abuse and abuse of process, not mere failure to pay a debt. | Immigration and naturalization is pretty far out of my comfort zone, but I'm confident that the answer is yes. Although people often believe that a foreign embassy is considered the territory of that country, I don't know of any law that supports that belief. Instead, through the Vienna Convention, the embassy grounds remain the territory of the host state but are provided a variety of protections and immunities because of their diplomatic status. With the embassy on U.S. soil, the child would therefore satisfy the "born ... in the United States" prong of the 14th Amendment's Citizenship Clause.* But that would not be the end of the analysis, as birthright citizenship also requires not just that the child is born in the United States, but also that the child be "subject to the jurisdiction thereof." So if the child were born to an American citizen who had entered the Indian embassy to get a travel visa, the child would be both born in the United States and subject to its jurisdiction, making it eligible for birthright citizenship. But if the child were born to Indian ambassador or to diplomatic staff, who would generally be able to claim diplomatic immunity, that child would not be subject to the jurisdiction of the United States and would not be able to claim birthright citizenship. Slaughter-House Cases, 83 U.S. 36, 73, (1872) ("The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."). * I haven't been able to find any cases saying this explicitly, but all the cases involving children born in foreign embassies sort of skip over the question as though they just assume that the child was born in the United States. See, e.g., Raya v. Clinton, 703 F. Supp. 2d 569 (W.D. Va. 2010); Nikoi v. Attorney Gen. of U.S., 939 F.2d 1065 (D.C. Cir. 1991) These cases also go on to conclude that those children are not citizens of the United States, because they are not "subject to the jurisdiction thereof." | US Constitutional law generally recognizes the right of freedom of movement, e.g. in Corfield v. Coryell, 6 Fed. Cas. 546, Crandall v. Nevada, 73 U.S. 35, Paul v. Virginia, 75 U.S. 168. The more recent case Saenz v. Roe, 526 U.S. 489 affirms the position that restricting the "right to travel violates the Equal Protection Clause absent a compelling governmental interest", and one of the specific rights subsumed under the right to travel is "the right to enter and leave another State". The "compelling governmental interest" is a reference to standard of judicial review known as strict scrutiny, where a law that restricts a fundamental right (the right to travel) is required for a "compelling state interest", is "narrowly tailored" to that purpose, and is the "least restrictive means". It is highly likely that each state has a statute that grants broad powers to the governor in case of a state of emergency. Such an order would then have to be scrutinized strictly, with respect to the narrow tailoring and least restrictive aspects of the question. We would then have to analyze the specifics of the case and order. | Under Article VI of the US Constitution, the federal constitution and valid federal laws are the supreme law of the land, and judges in every state are bound to apply them regardless of anything in the laws or constitution of any state.* If a state legislature passes a law banning same-sex marriage, a state court is required under the federal constitution to instead apply the federal constitution (as interpreted by the US Supreme Court in Obergefell v. Hodges) and rule as though same-sex marriage is legal. When it comes to a federal court, things are even easier: a state cannot command a federal court to do anything. A federal court’s authority is laid out in Article III of the federal constitution and in federal statute, which (per Article VI) is supreme over anything in the laws or constitution of any state. There have been times where states attempted to challenge federal supremacy. Normally, this is handled by going to federal court. Decisions in state courts can ultimately be appealed to the US Supreme Court, which can reverse them if they incorrectly applied federal law. Most of the time, that’s the end of matters: when a federal court rules, state officials comply. Occasionally, that’s not enough. If a state disobeys the orders of a federal court, they can be enforced by federal agents. If even that isn’t enough, the President can deploy the armed forces to uphold federal authority. * There are situations which are more complicated, like when something is a federal crime but not a state crime. I can do more research on that if you want, but for now I’m going to leave it at “it’s more complicated.” | This article surveys the law, as of 2014. The answer is "yes or no, depending on which circuit". In US v. Chafin 423 F. App’x 342, the court decided that although the Second Amendment protects an individual's right to bear arms, it does not necessarily give rise to a corresponding right to sell a firearm drawing an analogy to US v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123 "the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others". Likewise the 9th weighs in, in Montana Shooting Sports Association v. Holder, 727 F.3d 975: Heller said nothing about extending Second Amendment protection to firearm manufacturers or dealers. If anything, Heller recognized that firearms manufacturers and dealers are properly subject to regulation Contrarily, in the Northern Illinois district in Illinois Association of Firearms Retailers v. City of Chicago, the court finds in response to a ban on the sale of firearms in the city that. the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm...the ordinances are declared unconstitutional The same court in Kole v. Village of Norridge determined that the would-be operator of a gun store, thus has derivative standing to assert the subsidiary right to acquire arms on behalf of his customers both decisions relying on Ezell v. City of Chicago, 651 F.3d 684, where the city sought indirect means to encumber the exercise 2nd of Amendment rights (banning shooting ranges). The final answer will have to be made by SCOTUS, and so far there is nothing on the docket that could decide the matter. Instead, the question will be answered based on level of scrutiny for firearms regulations and whether " the government can establish that the challenged law regulates activity falling outside the scope of the right as originally understood"; and if it is not outside the scope of the 2nd Amendment, "then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights". | Yes. American descendents of African slaves filed several lawsuits in the early 2000s seeking "monetary relief under both federal and state law for harms stemming from the enslavement of black people in America," i.e., reparations. Those cases were consolidated into a single case heard in Chicago, where the judge ruled there was no standing to bring the cases, given the many degrees of separation between the defendants' conduct in the 1800s and the 21st Century plaintiffs. The Seventh Circuit affirmed: If there were a legal wrong, it would not be a wrong to any living persons unless they were somehow the authorized representatives to bring suits on behalf of their enslaved ancestors. With some exceptions to be noted, the plaintiffs are suing to redress harms to third parties (their ancestors), without being authorized to sue on behalf of those parties. It is like a suit by a descendant of a Union soldier, killed in battle, against a Civil War era gun manufacturer still in business that sold guns to the Confederacy in violation of federal law. A federal court could not entertain the suit because the plaintiff would be unable to prove a harm to an interest of his (such as his bank account) that the law protects. In re African-Am. Slave Descendants Litig., 471 F.3d 754, 760–61 (7th Cir. 2006). The Seventh Circuit permitted one very small portion of the case to proceed, and the Supreme Court declined to review the case. | In the case of United States vs Wong Kim Ark 169 U.S. 649 (1898) (a 6-2 decision), the Supreme Court wrote: [T]he real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. ... [T]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. ... To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States. In short the phrase “and subject to the jurisdiction thereof” excludes three and only three groups of people: Children born to foreign diplomats here on diplomatic business, who have diplomatic immunity to US Law; Children of members of an invading army that has occupied and controlled some part of US territory, born on that occupied area, who are obviously not subject to US Law (which has rarely happened in the US, although Guam was occupied during WWII, and parts of Alaska, and small parts of Maine during the War of 1812); and Members of Native American tribes, subject to the jurisdiction of their tribal governments, who do not pay US taxes. (This was true when the 14th amendment was passed, but it no longer is. See section below on the act that changed it in 1924.) Any other person born in the proper US or in incorporated US territory is a citizen, no matter who his or her parents are or were. (The case is less clear for unincorporated US territory.) See also the Wikipedia article on the case This view was confirmed in 1995 in an opinion from the Justice Department’s Office of Legal Counsel written by then-Assistant Attorney General Walter Dellinger, taking the position that this rule could not be changed by legislation, only by Constitutional Amendment, writing: My office grapples with many difficult and close issues of constitutional law. The lawfulness of this bill is not among them. This legislation is unquestionably unconstitutional. The Fourteenth Amendment declares that “[a]ll persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” U.S. Const, amend. XIV, § 1. The unmistakable purpose of this provision was to constitutionalize the existing Anglo-American common law rule of jus soli or citizenship by place of birth and especially to extend it to persons of African descent and their descendants. In Plyler v. Doe, 457 U.S. 202 (1982) the Supreme Court of the United States struck down both a state statute denying funding for education to children in the United States illegally and a municipal school district's attempt to charge an annual $1,000 tuition fee for each student. The case upheld the same principle that the constitutional phrase "within the jurisdiction" applies to the children of people who had entered the US illegally. According to the Wikipedia article on the case: Texas officials had argued that illegal aliens were not "within the jurisdiction" of the state and thus could not claim protections under the Fourteenth Amendment. The court majority rejected this claim, finding instead that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful." The dissenting opinion also rejected this claim, agreeing with the Court that "the Equal Protection Clause of the Fourteenth Amendment applies to immigrants who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state." Thus the question of whether such aliens were "within the jurisdiction" of the US was very much at issue in Plyler v. Doe EDIT: Since the Indian Citizenship Act of 1924 was passed, all Native Americans born within the US have been citizens by birth, and the third class of exceptions noted in the earlier cases non longer exists. Prior to this act Native Americans were in many ways treated as foreigners by the US. They were not citizens by birth, and their tribes had some but not all of the attributes of independent nations. The text of the law is: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property. (End edit on Indian Citizenship Act of 1924) Edit: On reading through the decision of the case of Wong Kim Ark I find one more small exclusion: persons born on board a foreign naval ship, even though present in US waters in time of peace, are not citizens of the US because of their birth location. This is apparently not a usual case, but is premised on the ground that a military vessel remains the territory of the nation it belongs to. Such persons might of course be citizens by inheritance if one or both parents are US citizens, and the statutory conditions are complied with. (The term "public ship" in the 1800s was used to mean a national ship, that is a military ship.) (End edit on naval ships) I just learned that some parts of the State of Maine were occupied by the British during the war of 1812. I do not know if anyone was born during that occupation whose citizenship might have been affected. |
Northern Ireland: Is Homicide an offence in common law or is it an offence in statute? In one of the episodes of the British-Irish television series The Fall, a person is charged by PSNI, in Northern Ireland, with multiple counts of murder. The police officer reads out the charges in full, one by one, stating the actual offence and each time using the phrase contrary to common law to describe the offence. I searched online a bit and the Wikipedia page on common law offence says Common law offences are crimes under English criminal law and the related criminal law of other Commonwealth countries. They are offences under the common law, developed entirely by the law courts, and therefore have no specific basis in statute. However, it seems that there is indeed a statute, Offences against the Person Act 1861, currently in effect in England and partially in effect in Northern Ireland as well which makes homicide of the type covered in that series an offence. My questions therefore are: Is my interepreation of the phrase contrary to common law correct in that it implies that the offence mentioned in the charges were common law offences and not statutory offences? If not then what does that phrase actually mean? Did the writers of that episode make an error or is it that homicide is indeed a common law offence and not a statutory offence? | It can be both Many common law jurisdictions have codified common law crimes in statute. However, unless that (or another) statute abolished the common law crime then the statutory crime and the common law crime exist in parallel. You would need to look through all relevant statutes to see if the common law crime was abolished. For an example, s80AD of the new-south-wales Crimes Act 1900 says “The common law offences of rape and attempted rape are abolished.” | tl;dr No, it won't be a viable defense. Background Touch has an established interpretation at common law. The common law is judge-made law. If an offense involving touch existed at common law, then the meaning of touch is "defined" by the judicial opinions themselves. As the comments have noted, you'll be able to find hundreds of years worth of opinions where judges have, by example, determined what qualifies as touching. Putting your hand on someone, yes. Spitting on someone, yes. Blowing from a distance, no. These examples make up the common law definition of touch. But how, you may ask, would the common law evolve to include new information? The answer is clear. Say Jill purposely hits Jack in the face with a shovel. When appearing before the judge, she says, "we have a new understanding of atomic proximity, so technically the atoms in the shovel never made contact with the atoms in Jack!" The judge will say, "that's interesting, but it seems irrelevant to what we're trying to accomplish with the law: Jack still had to go to the hospital. Judgment for Jack." Now the common law has incorporated the new information (...at Jill's expense). Touch isn't defined at the atomic level when interpreting a statute. Some offenses are defined, not by judges, but by statutes enacted by legislatures. If the language in the statute is ambiguous, courts have to interpret its meaning. This is often done by looking at the purpose of the statute or by looking at the plain meaning of the language. Statutory interpretation: purpose Where a court does not employ the plain meaning approach, it will often look for evidence of the drafter's intent. In this case, the court would ask what the purpose of a law like battery is. They'd probably conclude it has to do with preventing harm and offense. In fact, they probably included things like that in the statute itself. So they'd wonder if defining contact at an atomic level would help to prevent harm and offense; that seems unlikely. In so doing, the court may analyze the legislative history. It may look at events that happened around the time the law was enacted: did the legislature propose it because people were hitting each others' faces with shovels? It might even appeal to the state of the common law at the time the statute was enacted for the proper definition. Statutory interpretation: plain meaning First, it might help to look at an example from District of Columbia v. Heller, 554 U.S. 570 (2008). There the Court was tasked with interpreting some Second Amendment text. In doing so it said, "we are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings." Id at 576-77. Statutory interpretation also makes use of this plain meaning approach. As stated by the Court, "where the language of an enactment is clear, and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.” United States v. Missouri Pacific R.R., 278 U.S. 269, 278 (1929); see also Black's Law Dictionary (10th ed. 2014). This is bolstered by the practice of explicitly defining words with technical meanings in a definitions section of the statute. For example, Article 9 of the Uniform Commercial Code employs a number of terms in a technical sense, and 9-102(a) defines 81 words that are intended to take on a technical meaning. Another example is the Illinois battery statute, 720 ILCS 5: Sec. 12-3. Battery. (a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. The statute doesn't have a technical definition for "physical contact." So under plain meaning we'd construe it in its common sense. Merriam-Webster's Dictionary (a favorite of U.S. courts) defines touch as, "to bring a bodily part into contact with especially so as to perceive through the tactile sense." That definition implies that tactile sensation is what triggers (2), not any atomic concept of proximity. If you're interested in further reading, proper interpretation of the term "physical contact" came up in the insurance contract setting in Mount Vernon Fire Ins. Co. v. Busby, 219 Cal. App. 4th 876 (2013). united-states | Scotland has a third possible verdict, which covers much of the situation you are asking about: “not proven”. While still an acquittal, it is typically used by judges and juries in situations where they are not suitably convinced the defendant is necessarily innocent, but not convinced the evidence supports a conviction. As recently as 2015, attempts to remove the third verdict from the Scottish legal system were rejected, despite it being seen as an easy way out for courts. | It depends highly on which jurisdiction you're referring to. This is one of the areas where it varies state to state. "Practicing law" is not generally defined in statute, but the Wikipedia definition defines it as (emphasis mine): giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister, solicitor, or civil law notary. Wikipedia defines Legal advice as the giving of a professional or formal opinion regarding the substance or procedure of the law in relation to a particular factual situation. and displays the following enforcement provision (emphasis mine): Criminal laws and enforcement of "Unauthorized Practice of Law (UPL)" statutes is the organized bar's preferred method. Thus, New Jersey has a law which makes it a “disorderly persons offense” to knowingly to engage in the unauthorized practice of law, and a “crime in the fourth degree” to commit UPL if one (a) creates a false impression that one is a lawyer; (b) derives a benefit from UPL, or (c) causes an injury by UPL. See also IANAL, which has some information about usage on the Internet: The case law standard for determining what comments cross the line is generally "the application of law to facts specific to an individual seeking legal advice". | Under Canadian law, causing the death of human being is homicide. If the homicide is "culpable", it is an offense (crime). In the described scenario, it might be culpable homicide if the death was due to "criminal negligence". That would be the case if in doing a thing, the person "shows wanton or reckless disregard for the lives or safety of other persons". We've now reached the end of what statutory law has to say about the question. Court cases take us a bit further in understanding criminal negligence. The wisdom of the courts is distilled to ts essence in jury instructions, which say The Crown must prove beyond a reasonable doubt that the accused's conduct showed a marked departure from the conduct of a reasonable person in the circumstances; and that a reasonable person in the same circumstances would have foreseen that this conduct posed a risk of bodily harm. R. v. Tutton is an example: the court finds that The phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense. It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk assumed. Ultimately, though, the fact-finder must evaluate the behavior against a highly subjective standard as to "what a reasonable man would do". I cannot imagine a scenario where shoving a person realistically could lead to them falling into traffic and getting killed but there the shoving was ordinary horseplay. Pushing a person in the direction of oncoming traffic is abnormal behavior that shows shocking disregard for the probable harm caused to another. But perhaps there is some innocent scenario where this was really just a tragic outcome. So the answer is, it could be culpable homicide, or not, depending on the facts. To be classed as murder (rather than manslaughter) the person has to intend to cause death (§229), which is missing from this scenario. | Assuming these are common law crimes (Kenya is a common law country - sort of) or statutory crimes that have codified common law crimes without substantially changing them. It is not attempted murder - this requires an intent to kill. Pulling the trigger would have that intent, pointing it doesn't. It is assault if it puts the victim in fear of immediate harm (pretty sure it would). There are probably some statutory firearms offences too. | Criminal negligence pertains to criminal acts, which are prosecuted by the government and where a defendant can be convicted and punished. There will be a statute explaining where "criminal negligence" is relevant and when it is applicable. Here is the section in Washington law about criminal negligence: A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. There are a number of criminal offenses where being "criminally negligent" in doing the thing is sufficient, for example mistreatment of a child or manslaughter. First degree murder requires "premeditated intent to cause the death of another person" which does not does not include "criminal negligence" (there is a separate clause about "under circumstances manifesting an extreme indifference to human life" which is different from criminal negligence). "Gross negligence" can arise in a number of other non-criminal circumstances, and is defined (and discussed) here. Gross negligence is the failure to exercise slight care. It is negligence that is substantially greater than ordinary negligence. Failure to exercise slight care does not mean the total absence of care but care substantially less than ordinary care. This concept arises under numerous laws such as the gross negligence of government officers in fish and wildlife matters, where the game wardn can be sued and found civilly liable for gross negligence in performance of duties. He can't be imprisoned (it's not a crime), but he can be fired or forced to compensate the damaged party. There is no clear difference in what level of negligence we are talking about, instead the difference has to do what what kind of law we are concerned with. Usually (?), crimes are intentional acts where the prosecution has to prove that the defendant intended to do so-and-so. But laws are also written so that certain levels of bad behavior also punishable, such as tricking a person into falling to their death as part of a jackass stunt. One use of "gross negligence" in a civil case is that certain act may be immunized against liability arising from simple negligence (Good Samaritan law for example), but not gross negligence. | Given that a murder and an involuntary manslaughter are two different offenses, could a jury be asked to adjudicate on both counts? This happens routinely. Could it find the defendant guilty of both? Only for certain offenses. See lesser included offense. Could the DA even accuse the defendant of both during the same trial? Yes, which is how juries are asked to adjudicate multiple offenses as noted above. What about in different trials? All the crimes associated with a given act have to be tried at once. If you've been acquitted of murder in connection with one act, you can't subsequently be tried for involuntary manslaughter for the same act, nor vice versa. And what about murder and attempted murder? I don't think it's possible to be tried for an attempt when the crime has been successful; certainly, the opposite is true. But again, if the charges are based on the same act (i.e., we know you tried to kill the victim, and we know someone succeeded, but we don't know whether it was you) then the charges would have to be tried at the same time. |
Why was the Supreme Court of the United States set up to only hear cases en banc? From the very beginning of the US Supreme Court, we've required a quorum of Justices to be present to hear a case. Unfortunately, seeing as we set up a co-equal judiciary rather than the parliamentary dominance over English common law, we did not have England to use as an example. We have had multiple opportunities to change this, like the Judiciary Acts of 1891 and 1925 where Congress decided that rather than expand the Supreme Court or allow assignment of cases to a panel of Justices like it does the circuit courts, we would simply give the judiciary greater power to pick which cases it heard. To me, this implies that the quorum model was not only intentional, but that it was important enough to preserve for the length of our democracy. So why is the US Supreme Court set up to only hear cases 'en banc'? | The practice of having all SCOTUS cases heard by the whole court (en banc) rather than by individual justices or panels is nowhere specified in the US Constitution. Nor is it mentioned by The Federalist which is often a good source on the intentions of the Framers. It seems to have been adopted by the first session of the court with little discussion -- at least none that has come down to us. I strongly suspect that English models were in the minds of those early court members, but I do not know exactly which models. The practice of the various state Supreme courts may also have been influential. This practice seems to have been confirmed and definitely settled by Chief Justice John Marshall, who did so much to define the Court's procedure. He also strongly encouraged the court to issue a single option in each case, discouraging both concurring and dissenting opinions. He felt that the Court should always speak with a single voice. During the first fifteen years of his tenure, he himself wrote close tom 90% of the court opinions, according to an academic study of the Marshal Court I read about a year ago. It is worth recalling that in the early years there were not many SC cases, and there was no need to split up the work of the court. It is also worth remembering that at that tine there were no separate appeals courts. Rather, each Justice "rode circuit" holding court in several different cities, in each sitting with one or two District Court judges as a panel court. Thus when a case reached the SC on appeal, it had already been passed on by a single Justice. The justices, through the end of the Marshall Court in the 1830s spent more than half of each year on circuit. Addition: One should also remember thst from the start through the 1830s the Justices lived in boarding houses during the Court term, and in most terms most or all of the Justices lived in the same house, where the work of the Court was discussed over dinner and in the evenings. None of which Really answers "why do we do it this way?" I do not know of any document that first laid out this practice, much less gave reasons for it. | On January 15, 1780, the Continental Congress resolved to establish "for the trial of all appeals from the courts of admiralty in these United States, in cases of capture", then a few lines later resolved "defraying the expence of said court of Appeals", and resolved actions "to carry into full and speedy execution the final decrees of the Court of Appeals", thus clearly establishing the acceptance of the first federal court of the US, the Court of Appeals in Cases of Capture. Some years earlier, Nov. 25 1775, the Continental Congress passed a number of resolutions pertaining to judiciously deal with seized goods in the course of the war (when there was no codified law or court system), where "prosecutions shall be commenced in the court of that colony in which the captures shall be made", but "cases an appeal shall be allowed to the Congress, or such person or persons as they shall appoint for the trial of appeals". The Court of Appeal of England and Wales was created in 1875, which seems to be the first UK court specifically established for hearing appeals. There is no obvious linguistic reason for these different names assigned to the functionally same court in two countries, but once a name is officially given, it takes an act of Congress or Parliament to change the name. | India does not have a constitutional court, which is a term usually reserved for a court which has exclusive jurisdiction over constitutional questions and is usually limited to deciding constitutional questions. India has a (mostly) unitary court system capped by the Supreme Court of India, but its jurisdiction is not limited to constitutional questions, and it is not the only court in India that can interpret and apply the Constitution of India. When a component of a decision decided by the Supreme Court of India is not necessary for resolution of the case before it, that portion of the decision is called dicta and is not binding precedent although it is still persuasive authority before lower courts as it is a good indication of how the Supreme Court of India would resolve a case in future litigation. The same distinction between portions of a ruling that are binding precedents and those that are mere dicta also applies in all other appellate courts in a common law legal system such as India's. Also, a portion of a court decision is not dicta merely because it is far reaching. A binding precedent can be broad or narrow in the deciding court's discretion. What makes "dicta" distinct is that it is literally "off topic" and not literally controlled by the potentially broad principles used to decide the case before the Court. What determines whether a part of the ruling is "off topic" is the exact scope of the issue that the court states that it is resolving. For example, if the Court states that it is resolving the question of "due process in an admiralty case" and remarks on due process in an ordinary non-admiralty case, the later remarks are dicta. But if the court states that it is resolving the question of "due process in a legal proceeding" then the same statement is not dicta. | The Supremacy Clause. U.S. Constitution, Article VI, Clause 2: 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. [emphasis mine] This is also known as the "Supremacy Clause" of the U.S. Constitution. It prevents any law of any state from acting contrary to the federal constitution. A comment correctly cites multiple cases that use this clause, in part, as the basis for SCOTUS' authority to review State Supreme Court decisions. So in your hypothetical, the federal issue in play is the clarity of the federal constitution which supersedes state law. | The only relevant case heard by SCOTUS is Nixon v. US, 506 U.S. 224, where a federal judge was tried and convicted for actual crimes, but would not resign his position so continued to draw his salary. The key legal question was whether the matter is "justiciable" (meaning, not a political matter but a legal matter). Nixon's argument was that Senate Rule XI violates the Impeachment Trial Clause, and the court held that the question (more specifically what it means to "try") is nonjusticiable. White & Blackmun, and Souter, wrote concurring opinions (which might be called on in a subsequent impeachment case) that reminds the reader (and future court) what was not part of the holding of the court, and what might therefore allow future impeachment review. White writes The Court is of the view that the Constitution forbids us even to consider his contention. I find no such prohibition and would therefore reach the merits of the claim. I concur in the judgment because the Senate fulfilled its constitutional obligation to "try" petitioner. He observes that the Senate has very wide discretion in specifying impeachment trial procedures and because it is extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges. But, I would prefer not to announce an unreviewable discretion in the Senate to ignore completely the constitutional direction to "try" impeachment cases. When asked at oral argument whether that direction would be satisfied if, after a House vote to impeach, the Senate, without any procedure whatsoever, unanimously found the accused guilty of being "a bad guy," counsel for the United States answered that the Government's theory "leads me to answer that question yes." Tr. of Oral Arg. 51. Especially in light of this advice from the Solicitor General, I would not issue an invitation to the Senate to find an excuse, in the name of other pressing business, to be dismissive of its critical role in the impeachment process. Souter in his opinion states that One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply" 'a bad guy,'", judicial interference might well be appropriate. In such circumstances, the Senate's action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence. In other words, review of an impeachment is largely but not entirely off the table, at least until SCOTUS declares that impeachments are completely unreviewable, no matter what, period (unlikely to ever happen). | Yes It's legal: but that's more of a bug than a feature. The Constitution says this about the appointment of Supreme Court judges: he [the President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, ... In the Federalist Papers: No 76, Hamilton had this to say: But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. and in No 78: It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." He was wrong about the first but right about the second. Now, this is only the way he saw it and others no doubt had other views but he was focused solely on balancing the powers of the executive and the legislature. There is no consideration of what would happen if, for whatever reason, including partisanship, the executive and the legislature were tightly aligned or hopelessly opposed. Even for the time, this view seems overly idealistic and hopelessly naive. However, these are the same people who thought it would be a good idea for the runner-up in the Presidential race to be the vice-President. Indeed, Hamilton saw and was an integral part of the intense partisanship that arose in the 1790s between the Federalists and the Republicans and the first rejection of a Supreme Court nominee happened during George Washington's Presidency. This analysis shows that the confirmation rate when the White House and Senate are politically aligned is 87.2% but only 47.2% when they are different. That said, most (78%) nominees have been confirmed with the last decade being about average. The US Supreme Court has always been partisan. Indeed, it's only since the Second World War that the idea that it shouldn't be has taken root. In earlier days, the Supreme Court was not populated by jurists - it was the domain of politicians, some of whom moved back and forth between the bench and the Capitol. In Brown v Board of Education 4 of the 9 judges had been Congressmen or Governours and some had never been on the bench of any court before their appointment to SCOTUS. So, yes its totally legal but no, it probably isn't what the founders intended but yes, it has ever been thus. | Any precedent can be overturned by any court at the same or higher level in the hierarchy So, for your example of a High Court precedent, it can be overturned at Supreme Court, Court of Appeal or High Court levels. However, the longer a precedent is in place, the less likely it is to be overturned because one of the objectives of the legal system is to provide certainty - a system that routinely overturns precedent doesn’t do that. Also, a precedent that is often cited with approval is more compelling because it’s no longer just one judges reading of the law, many other judges agree. Also, the judiciary tends to be conservative in overturning precedent. Most judges see it as their role to interpret law made by the legislature. If the people/legislature think their interpretation is wrong then the judiciary tends to feel that the legislature is the body who should change the law. That said, really old common law precedent that hasn’t been cited for a long while may be readily overturned if it comes up because social expectations may have changed. | A "circuit court" is a kind of court in a judicial system. It generally covers a large-ish area; the name comes from the fact that back in the days of horseback travel, judges would literally ride around a circuit to hold court. The exact meaning depends on the court system. At the federal level, the circuit courts are the main federal appeals courts. Each one covers multiple states (except the DC Circuit which just covers DC and the Federal Circuit which has subject-based jurisdiction). A circuit court normally hears cases before a 3-judge panel; that panel's decision is normally binding precedent in federal courts throughout the circuit, including on future panels of the same circuit. Panel decisions can be overturned by SCOTUS or by the circuit court sitting en banc (i.e. all the judges hear the case, not just 3 of them). Outside the circuit, a circuit court's decision is only persuasive precedent. At the state level, what circuit courts do depends on the state. In many states that have them, they're the most important trial courts, handling large civil cases and felony criminal cases. Some states have lower-tier courts to handle minor issues, in which case they might allow an appeal from the lower courts to the circuit court. This appeal might be like a normal appeal (where the higher court looks at the record from the lower court and only considers whether the lower court got the law wrong), or might be a trial de novo (where the higher court throws out the lower court's decision entirely and tries the case itself from scratch). It really depends on the state. If a state's circuit courts are trial courts, they generally don't set much of a precedent. |
How does the law is the way jury interpret it works? I've heard that there is a legal principle in US. The law is interpreted the way the jury thinks is true, and not necessarily the way the framers of the law want. For example, if the law says you shall not commit adultery, and the jury think watching porn is adultery, then anyone watching porn is sent to jail. I am taking a sample from a religious law here that obviously doesn't apply. What is the name of the legal principle, and how does it work? Any samples, on how it works? Does this work only on countries with common laws and jury or all laws? Are there samples where the laws intent is vastly difference than the actual laws? One thing I consider is the no fault divorce law. It's encoded with terms like "irreconcible difference". A normal jury would think that some actual "irreconsible difference" will have to be there instead of it to mean no fault divorce. Another thing that's strange is what about the judge? I thought the judge instruct the jury all the time what the laws mean. Is the principle even true. | The only thing which has a name and sounds somewhat like what you're talking about is "jury nullification". This generally refers to the situation where a jury deliberately sets aside the judges instructions about the law and supplies their own interpretation. For example, Peter Zenger was technically guilty of seditious libel because as a matter of law the material was sedition libel and the only legal question was whether he had published it. The jury found him not guilty, on the grounds that the statements were true, but truth was not an element of the crime. It is the general pattern in the US that the judge is the only person empowered to say to the jury what the law is. By selecting specific instructions (phrased as "If you conclude X, you must find the defendant guilt", that is, stating the "finding-to-verdict" equation), the jury is given a formula for figuring out what the law says. Trial judges are not the ones who decide what the "framers" of the law intended, that comes from higher appeals courts who may study the legislative history. It can happen that a law uses an unclear phrase like "irreconcilable differences" and the jury doesn't know exactly what that means: then the judge may tell them to decide on their own, or give them a dictionary (however, there probably is an instruction for divorce law, and it's unlikely that a jury would be involved in a simple marital dissolution). It is entirely possible that jurors will end up misinterpreting what the law says in some instance, but I doubt that it happens very often. It is more likely that jurors will deviate somewhat, compared to judges in a bench trial, in matters of judgment such as whether an action is "reasonable". | This happened despite the fact that the marriage and Bible verses requirement were almost surely illegal and similar things have happened on and off, mostly in rural courts with non-attorney judges, for pretty much as long as the U.S. has been a country (and earlier). The trick is that the orders take effect unless someone appeals them, and since deals like this are usually a result of a plea bargain which waives rights to an appeal, and even if the result is simply imposed by the judge, one has to consider if taking the case up on appeal, having the sentence reversed, and then having it remanded to the same judge for resentencing would be worse from the perspective of the defendant, given the broad authority of a sentencing judge in a minor case like this one, than simply accepting the illegal sentence. Also, cases that aren't appealed never create precedents and aren't generally available among resources used by legal researchers, so they systemically evade documentation in easily available sources. | Yes Deciding a case on a basis the parties have not raised is a denial of natural justice (or procedural fairness) and invalid. The reason is very simple, the parties have not had the opportunity to produce evidence or make submissions about C or D that might have changed the judge’s mind about them. Notwithstanding, to successfully appeal, the aggrieved party must show there were arguments that could have been raised which could reasonably have altered the outcome. That said, it’s the judge’s courtroom and they can say “That’s interesting but what about C and D?” and then the parties can make submissions about them. They do have to be circumspect and make sure that they do not become one party’s advocate - one party might be well aware of C and D and don’t want them brought up because they damage their case and they are hoping the other party misses that - and then the bloody judge come charging in with his bloody duty to wider interests of justice. Non-judicial decision makers like arbitrators, adjudicators and other tribunals need to be even more circumspect because they generally don’t have a duty to anyone but the parties. Unlike in civil law systems, the role of the judge is to decide the dispute between the parties as a referee, not to determine some objective”truth” as an investigator. To keep things simple: if the plaintiff contends that the light was red and the defendant contends the light was green then, assuming there is no evidence opening the possibility, it is not open to the judge to find that the light was amber. Similarly, if the parties agree that red means go and green means stop, it is not the judge's role to tell the parties they are wrong (I'm sure questions would be asked but if the parties are adamant ...): since there is no dispute over this issue the judge would be wrong to agitate one. Now, a judge is free to apply the law that was argued as a whole - if arguments centred on Section 14 of the Relevant Act 1875 but Section 15 is applicable and germane the judge is not wrong for applying Section 15. However, they are on shakier ground if the bring in Other Slightly Relevant Act 1956. | Yes, a judge may use the bible when making a decision. However, the usage nearly always takes the form of citation (in the form of scholarly texts) rather than precedent. That said, the lines get blurry sometimes. In Banks v. Maxwell, 171 S.E. 70 (N.C. 1933), the N.C. Supreme Court was tasked with resolving a dispute where the plaintiff had been gored by a bull. As a means of anchoring precedent and establishing a strict liability rule when a bull has previously gored, it stated "[t]he familiar rule of liability for injuries inflicted by cattle has remained approximately constant for more than 3,000 years. This rule of liability was expressed by Moses in the following words..." The court goes on to cite Exodus 21:28-30. | No Only the ratio decidendi of a case sets binding precedent. By definition, that has to be in the decision of the court’s majority because that’s what decided the case. If a minority decision disagrees with the majority on ratio, then the majority is the binding precedent. If the point is obiter, then it’s merely persuasive, not binding, irrespective of where it is. | This is known as a retroactive or ex post facto law. Such laws are explicitly forbidden by the US Constitution (Wikipedia reference), and are generally frowned on in jurisdictions where the rule of law applies, partly because it is difficult to prove criminal intent when your action was not at the time criminal. | One principle of copyright law is that if you can prove independent authorship, there cannot be liability no matter how similar your work is to the prior work. "If by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." (Sheldon v. MGM Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936)). Now, of course, the challenge is proving that you've never heard a given piece of music, or never read a particular work of fiction. If you have, even unconscious copying exposes to liability. And if the plaintiff can prove that you had access (such as the scriptwriter who sent a copy to a movie studio), they will have an even easier time proving the copying. If there is no proof of copying or not-copying, the copying can be proved circumstantially either through expert testimony or the jury's evaluation. The expert might testify something like "There is an identical tonal progression in these two songs, even though they were written in different keys. There were a million different ways the songs could have been written, but they are identical in this respect." The jury can consider that information and find the defendant liable. Or, the judge may simply tell the jury, "You may listen to these two songs, and find the defendant liable if you find them to be substantially similar to the extent that it is more likely than not that the defendant copied the plaintiff." TL;DR: The process can be conclusive, but if it isn't, then the output will be the evidence that the jury will consider. | 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 there a term for using law as the basis of morality? Legal moralism is when a society creates laws based on the prevailing morality of that society. Stuff like "we think green houses are immoral, so we made a law to ban green houses". Is there a term for the opposite influence? As in "if Y is legal, I have no problems with doing Y" as an individual viewpoint for moralism? | You're thinking of legalism. It can have different meanings -- especially in Chinese legal/philosophical history -- but is the best match to the concept you're describing. | This ultimately is a matter of Statutory Interpretation. One of the principles of statutory interpretation is that all words are interpreted in their context. For your example, that means we look at the title of 1464, "Broadcasting obscene language". From this it becomes apparent that radio is used in its common meaning of AM and FM radio broadcasts. Statutory interpretation is broader than that single rule, though. Legislative intent is another important factor, and that is rather effective in eliminating absurd arguments. Via the link above, from New Mexico's State Court: words have their ordinary meaning "as long as the ordinary meaning does not render the statute's application absurd, unreasonable, or unjust." In other words, absurdity is so bad that the court will prefer an alternative interpretation of the offending words. | No, but... Common law does not apply in countries that follow the legal school of Code Civil, aka civil law legal system, such as Germany or France. Some basic principles are common between them and common law: While there's generally no right to a jury, the innocence part actually stems in both cases from ROMAN law: in dubio pro reo - in the case of doubt, (you have to decide) for the accused. The similar Ei incumbit probatio qui dicit, non qui negat - Proof lies on him who asserts, not on him who denies - is the source: It was butchered into "innocent until proven guilty", but the sentiment is the same. Other countries that have no relation to common law are based on Sharia and Fiqh. There is absolutely no relation to Roman law either. However, there is a presumption of innocence, or as one of the largest Scholars of Islamic law Caliph Ali ibn Abi Talib said in the mid-600s: "Avert the prescribed punishment by rejecting doubtful evidence." However, what is considered doubtful is quite different. On the other hand, presumption of guilt was the foundational principle in other legal systems! | It can be both Many common law jurisdictions have codified common law crimes in statute. However, unless that (or another) statute abolished the common law crime then the statutory crime and the common law crime exist in parallel. You would need to look through all relevant statutes to see if the common law crime was abolished. For an example, s80AD of the new-south-wales Crimes Act 1900 says “The common law offences of rape and attempted rape are abolished.” | One does not introduce statutes in a trial, criminal of civil. Rather, one introduces facts. The judge will present "the law", and will present it in a digested form in the form of interpreted instructions to the jury about what the law says. Jurors are not required to interpret the meaning of statutes, because jurors are also not expected to know the relevant case law surrounding a statute. A party might make a motion to the judge where the argument depends in part on the wording of a statute. Then there is a standard but jurisdiction-dependent way of referring to s statute, e.g. ORS 164.015, RCW 9A.56.010. For Minnesota there are three interchangeable forms: "Minnesota Statutes 2008, section 123.45, subdivision 6" which is the same as "MINN. STAT. 123.45 (2008)" or "MINN. STAT. ANN. 123.45 (2008)", which is for statutes. You have to look it up on a jurisdiction by jurisdiction basis – here is the answer that Minnesota gives (all legal citations). | Caveats Obviously, I can't know the law of every jurisdiction and based my answer below on U.S. law. I have seen cases over the last few years on all of these points, but don't have all of the relevant references immediately at hand and I am instead working from memory. It is also a new and rapidly developing area of the law. People are always coming up with new kinds of conduct that were never thought of before which when analyzed appear to violate some kind of legal duty. A good rule of thumb is that if something novel seems intuitively wrongful it is usually possible to come up with a legal theory to impose liability for doing it by framing the situation in a way that analogizes it to more old school wrongful conduct. Overview All of these forms of liability require proof of more than the link alone, even though the link establishes one necessary part of the liability claim. There must also be some sort of contract or implied-in-fact agreement of people affected by the link, rather than arising purely from posting the link alone under a statute or tort law (tort law is the law of legal liability enforceable in lawsuits by a person harmed by wrongful conduct on grounds other than a contract or statute). Generally, that agreement is either an abuse of an otherwise legitimate contractual relationship by one of the parties to the contract (or an affiliate of one of the parties to the contract), or is agreement to work together to further someone else's tortious or criminal conduct. (Tortious conduct is wrongful conduct that gives rise to civil liability that can be enforced in a lawsuit, whether or not it is a crime). Generally speaking a link that was legitimate at the time and became illegitimate after the fact wouldn't sufficient for third-party beneficiary liability in this way. This is because most kinds of liability require intent to do something, knowledge that you are doing something, recklessness, willful and wanton conduct, negligence or some other threshold of liability greater than mere strict liability after the fact. Put another way, I have never seen a case where there is a legal duty to police links that have gone bad after they are posted in circumstances where the person who let the link go bad did expressly undertake an obligation to keep the links valid and to regularly monitor them, which almost no one does. An example that would be the exception to the rule would be a third-party website provider to a business that has a contract to regularly update and monitor the firm's website, for a firm like a grocery store or retail vendor that doesn't want stale coupons or discounts to be advertised, where this might be a breach of contract by the active third-party firm website operator. For most purposes, there is no liability Linking to a website does not, under U.S. law, constitute a copyright violation or a basis, in and of itself, for a defamation claim or trademark violation, related to the content of the destination site. I am not comfortable that this would be true in all jurisdictions. For example, I wouldn't be surprised if a country that adopted Islamic law as its supreme law would impose criminal or quasi-criminal liability upon someone linking to a website that violated that country's blasphemy laws, even the the linked site is legitimate in the place where it is made. TOS Violations Some links that exist for SEO (search engine optimization) purposes to a legitimate website can violate a terms of service (TOS) agreement at the website where the link is placed or of the Internet service provider (ISP) involved, with the usual consequence being that the website or Internet service provider can drop you and cease to provide service to you, even if you paid a subscription fee for that website or ISP that is not refundable in the case of a TOS violation. Strictly speaking, this isn't really "legal liability" but it would provide a justification for a self-help remedy that causes economic harm to the person engaged in violating the TOS with SEO conduct. Conceivably, a TOS violation could establish a duty that could provide a basis for someone other than the firm with whom the TOS violator agreed to the TOS, if the TOS violation caused harm to a third-party beneficiary of the TOS, but I've never actually seen a case brought successfully on that theory. And, generally speaking, a link to a legitimate website wouldn't cause legally recognized harm to a third-party who clicked on it. One situation where a TOS violation might give rise to liability to a third-party, however, would be a link designed to facilitate a denial of service attack that causes economic harm to the victim by preventing it from doing economically beneficial business with actual customers. Conspiracy liability Conceivably, if someone is directly to a website that is being used to conduct securities fraud or some other kind of fraud, or child pornography, there could be liability on a civil conspiracy or a criminal conspiracy to commit the crime at the linked site, but the link in and of itself wouldn't suffice to prove that case. Instead, one would have to show that there was an overt coordination with the primary violators at the destination website by the person linking to them, as part of an intentional effort to further the conspiracy and that the link was one overt act in furtherance of the conspiracy (generally also including other overt acts and generally in a case where the plaintiff or criminal prosecutor can show some motive to advance the conspiracy such as a sharing of profits from the conspiracy, or a family relationship to the primary offender, or reason to want to seek revenge against the victim(s) of the primary offense). The last sentence of the question, however, seems to not apply to this particular situation when it says: The hyperlink is to legitimate websites atleast at time of hyperlinking ok. Click Fraud SEO type links can also give rise to liability if you have a contract with a service that compensates you based upon the number of times that a web address is viewed (a.k.a. per "click"), for example, a Spotify song or a Webtoon comic or a streaming video service or an online marketing contract where you are being paid for sending traffic to a site that is marketing to third-parties. These cases are often called "click fraud" cases even when the theory of liability is not common law fraud. The theory of liability in these case is that you have (1) breached the duty of good faith and fair dealing, or (2) breached a specific contractual term to that effect, or (3) engaged in fraud (both civil and potentially criminal wire and mail fraud), or (4) engaged in the deceptive trade practice of false advertising (potentially a third-party or attorney-general could do this too, but the damages cases would be very weak). This is because either (1) you are being paid for third-party clicks intended to reach the destination in question, but are artificially inflating that count with links that you or (2) your confederates generate, or by links that mislead third-parties into going to a site that they will react negatively too, tarnishing the reputation of the person paying for the clicks pursuant to the contract. Usually lawsuits of this type a brought by the party paying for the clicks against a person who was overpaid until a click based compensation contract to recover an overpayment under that contract arising due to this misconduct. But Wikipedia identifies some circumstances in which there can be suits involving non-contracting party: A secondary source of click fraud is non-contracting parties, who are not part of any pay-per-click agreement. This type of fraud is even harder to police, because perpetrators generally cannot be sued for breach of contract or charged criminally with fraud. Examples of non-contracting parties are: Competitors of advertisers: These parties may wish to harm a competitor who advertises in the same market by clicking on their ads. The perpetrators do not profit directly but force the advertiser to pay for irrelevant clicks, thus weakening or eliminating a source of competition. Competitors of publishers: These persons may wish to frame a publisher. It is made to look as if the publisher is clicking on its own ads. The advertising network may then terminate the relationship. Many publishers rely exclusively on revenue from advertising and could be put out of business by such an attack. Other malicious intent: As with vandalism, there are many motives for wishing to cause harm to either an advertiser or a publisher, even by people who have nothing to gain financially. Motives include political and personal vendettas. These cases are often the hardest to deal with, since it is difficult to track down the culprit, and if found, there is little legal action that can be taken against them. Friends of the publisher: Sometimes upon learning a publisher profits from ads being clicked, a supporter of the publisher (like a fan, family member, political party supporter, charity patron or personal friend) will click on the ads to help. This can be considered patronage. However, this can backfire when the publisher (not the friend) is accused of click fraud. This link identifies and describes in some detail five leading click fraud cases: Motogolf.com vs Top Shelf (2020) – sporting goods, ongoing case TriMax Media vs Wickfire (2017) - digital advertising, $2.3 million Satmodo vs Whenever Communications (2017) - satellite phones, dismissed RootZoo vs Facebook (2012) - ruling denying motion for class certification Lane’s Gifts and Collectibles vs Google (2006) - $96 million settlement | See http://uscode.house.gov/download/download.shtml to start. But what exactly do you mean by a "law"? Lots falls under that term: do you include case law? SCOTUS decisions? Administrative policies? Read earlier Law SE question Naive approach to aggregating all US Federal Laws? | In this case the Plaintiff, James Maloney, has previously been charged with a crime for possession of nunchucks. He is apparently suing to enjoin further enforcement of the law under which he was previously charged. US Federal courts will only take up a "case or controversy", which means an issue where actual, not theoretical rights are at stake, and in order to vindicate a constitutional right, it must either have previously been violated, or there must be a plausible and immediate threat to it. Claiming that a law is unconstitutional as part of a defense to a charge of violating that law is a common and probably the best known method of challenging a law (or a government action) for unconstitutionality. But there are other ways. One way is to apply for an injunction against enforcement of the law. That is the procedure that was followed in, for example, the recent case where there was a ruling against the ADA in a district court. In order to use that procedure, the plaintiff must present evidence that there is a credible threat that the law will be invoked against him (or her) if the action which the plaintiff claims is protected by a constitutional right is taken. In short, one need not put oneself in a position where one goes to prison or is found guilty of a crime if one loses the case to challenge the constitutionality of a law or of a government policy or action. But one must establish that it is a real "case or controversy", with real parties in opposition to each other, and real rights at stake, not a mere law student's exercise, nor a collusive case, with both "sides" having the same actual goal. In the case reported, the previous criminal charge helps to establish that this is a real issue. |
Is exploiting a malfunctioning self-service checkout theft? Hypothetically, if a self-service checkout at my local Tesco were to be malfunctioning and selling items for half-price, and if someone were to exploit this to buy cheap goods, would this be considered theft under UK law? In the Theft Act 1968: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. Does the purchase of goods at half the marked price constitute dishonest appropriation? An argument that it doesn't might be that the self-service checkout has authorized the purchase and the requested amount has been paid, thus there is no dishonesty involved. However, the checkout is obviously not intended to operate this way, and the price shown by the checkout obviously doesn't match that of the displayed price in the shop. Does this mean that by knowingly still buying goods like this, the purchaser is being dishonest? | The word "dishonestly" is defined in the act (1)A person’s appropriation of property belonging to another is not to be regarded as dishonest— (a)if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b)if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or (c)(except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (2)A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property. The prosecution thus must establish that defendant knows that he has no legal right, that is, it must be established that he knows that it is not a legal purchase. The simple act of purchasing in these circumstances provides no proof of the alleged dishonesty: the prosecution must add something else. For example, testimony that defendant declared "Crikey! This machine is giving me half-off on everything, those suckers! I wish I had bought more" might be sufficient to establish dishonesty. The "intent" of management in installing these machines is legally irrelevant, indeed management's intent is to reduce operating costs. It is management's responsibility to ascertain that the machines function the way they wish them to. It is not self-evident to the defendant that the machine is malfunctioning, but defendant could have actual knowledge that makes the transaction dishonest. | england-and-wales Although there's the potential for money laundering the more obvious offence is Handling Stolen Goods contrary to s.22 of the Theft Act 1968 (1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so. (2) A person guilty of handling stolen goods shall on conviction on indictment be liable to imprisonment for a term not exceeding fourteen years. Note that any criminal liability will depend on one's mens rea (i. e. their guilty knowledge) when obtaining the stolen item. That said - the authorities, after considering all the evidence and circumstances, may prefer to use the recipient as a witness against the person from whom they received the artwork instead of prosecuting them. | Was or is possession of screwdriver illegal in the UK? Yes, if the screwdriver's intended purpose is for a criminal act. There's not enough detail in the article, but the most likely scenarios are: Offensive Weapon, contrary to section 1 Prevention of Crime Act 1953: (1)Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence ... [...] (4)In this section “ public place ” includes any highway, or in Scotland any road within the meaning of the Roads (Scotland) Act 1984 and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise; and "offensive weapon” means any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person. Going Equipped to steal, contrary to section 25 Theft Act 1968: (1)A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary or theft. (2)A person guilty of an offence under this section shall on conviction on indictment be liable to imprisonment for a term not exceeding three years. (3)Where a person is charged with an offence under this section, proof that he had with him any article made or adapted for use in committing a burglary or theft shall be evidence that he had it with him for such use. [...] (5)For purposes of this section an offence under section 12(1) of this Act of taking a conveyance shall be treated as theft. Possession with intent to destroy or damage property, contrary to section 3 Criminal Damage Act 1971: A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it— (a)to destroy or damage any property belonging to some other person; or (b)to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence. [with a maximum sentence of 10 years] NB in this jurisdiction, possession of a weapon for self-protection is not, except in some very narrow circumstances, a reasonable excuse to carrying one. | 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. | Yes, they are. A business can decide not to do business with someone for pretty much any reason. The obvious prohibited reason is due to your race. But I don't see how eBay would even know your race. Some State laws might protect you, but I don't think there's any that applies in this case. For example, California might give you a means of appeal if someone stole your identity and they performed those transactions, not you. But I don't know of any Federal or State law that would change the very, very basic principle of law that a property owner gets to decide who can and cannot access their property. eBay owns eBay. One key benefit of ownership is precisely that you can make decisions that other people consider to be unfair, discriminatory (other than the specifically prohibited categories) and draconian. Other people don't have to agree with your decisions for them to be lawful. | Yes, but ... It doesn’t protect you. Let’s imagine you put such a clause in and a person in Europe used your service notwithstanding: they’ve broken the contract but you’ve broken the law. You get the fine and they get ... nothing. Because you can’t contract outside the law you never had a valid contract with them so you have no basis to sue. Further, because you are purporting to something you can’t legally do, you are probably on the wrong side of misleading and deceptive consumer protection law: which is another fine. If you can ensure that you don’t breach local law - like by not operating over the internet - then you can choose not to deal with e.g. Europeans. If you can’t guarantee that, then you’re stuffed. | Not returning a payment made in error may amount to theft. s.5(4) of the Theft Act 1968 covers this scenario: Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. And the leading case law is A-G Ref (No 1 of 1983) [1985] QB 182 where, in similar circumstances: The defendant, a police woman, received an overpayment in her wages by mistake. She had noticed that she had received more than she was entitled to but did not say anything to her employer. She did not withdraw any of the money from her bank account. The trial judge directed the jury to acquit. The Attorney General referred a question to the Court of Appeal. Held [on appeal]: It was possible for a theft conviction to arise where the defendant had not withdrawn the money. There was a legal obligation to return the money received by mistake. | This is common law Larceny While some jurisdictions may have statutorily redefined larceny; it is a very old common-law crime. For example, the common-law definition is still in use in new-south-wales (even though the punishment is statutorily specified in the Crimes Act 1900) and the first element of the crime is that "the property must belong to someone other than the accused". The suggested jury direction from the Criminal Trial Courts Bench Book says: The law differentiates in a number of contexts between possession, control and ownership. Each of those concepts can become quite involved and complex. Fortunately, in the circumstances of the present case, it is neither necessary for me to seek to explain all their refinements to you, nor for you to understand all of those refinements. However, to give you but the broadest of examples: if you were to buy, say, an expensive diamond from a jeweller, assuming that it was legally [his/hers] to sell to you in the first place, then, the moment you took physical delivery of it you would own it, have the control of it, and be in possession of it. If, however, you proceeded to place it in a bank security box for safe keeping, you would, for some legal purposes anyway, cease to possess it, although you would still own it and be in control of it. If a robber broke into the bank and took your diamond, the robber would then be in possession of it, even though you would, in law, continue to be its owner. When I direct you that the property must belong to someone other than the accused, all that is required is that, at the time of the taking, it must be owned, controlled or possessed by someone other than the accused. Thus in this context, the law uses the concept of belonging in the widest possible sense. The overzealous shopper both controls and possesses the toilet rolls even though they are owned by the supermarket. |
What does the wording "wholly unconnected with your employment" mean in a UK Employment Contract Having some trouble understanding some wording in a contract and how it affects the employee. The main passage is You shall promptly disclose to the Company and to no-one else all copyright works or designs originated, conceived, written or made by you alone or with others (except only those works originated, conceived, written or made by you wholly unconnected with your employment) and shall until such time as such rights shall be fully absolutely vested in the Company hold them in trust for the Company. What exactly does the term "wholly unconnected" really mean? Can a "connection" be something tenuous, for example... If the job was a software engineering role, if the below were performed 100% out of work time, on personal hardware with no input from other employees at the company could they realistically be deemed as "connected" to the employment and owned by the employer? I can understand the issue if company hardware was used for personal projects, but surely nobody can lay claim to things produced outside of work? It would be extremely tenuous in my opinion but could somebody argue something is connected because it required the same skills as the persons job, even if done on their own time? Writing a book about software development Releasing an open source piece of software not specifically aimed at the industry the company is in Release a commercial piece of software not specifically aimed at or competing with the industry the company is in | "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. | I can't find any law that would prevent an employer from requiring this. Under current Florida law, an employer can even demand passwords and access to an employee's social media accounts. A bill was proposed to prohibit this, but it hasn't passed. Generally, an employer can require anything they want as a condition of employment, as long as it is not illegal. Florida has at-will employment so the employer could certainly fire the employee if they don't comply. | Your confusion might be caused by the fact that even with a contract, only the data necessary for that contract is covered under the GDPR. So yes, while there might be an "execution of contract" under the T&C, this would only cover necessary data. That means you can't ask arbitrary signup data under the guise of a contract. If you need to deliver a physical product, you can store a physical address. If it's an online service, you can store an email address or similar handle. But you can't mix the two. A physical address is unnecessary for the execution of a contract that's not physical in nature. Now, you mention "consent". Under GDPR, this is a distinct justification besides "execution of contract". You might have consent to store a physical address in addition to an online address, e.g. if you offer a customer to physically mail a password request form. This consent is additional to the contract. Also note that the bit above only covers the lawful reasons for the processing of personal data (article 6). You also have to obey the other GDPR rules, e.g. fully inform the user, make sure that consent is freely given, etc. | One of the principles of contract law is that the offer and acceptance are evaluated based on the objectively ascertainable intentions as judged by a reasonable person. On the facts that you have provided - even if your friend claims that they filled it out wrong, there is no reason for someone to objectively think so, particularly given the fact that they went to the trouble of writing the information in. However, this will depend on what kind of legally binding document this is. If it is, in fact, a contract, then the employer must accept it before it becomes legally binding, and they must actually communicate this acceptance to your friend (the offeror). If this is a policy document, then it is only legally binding if another contract has said that it is legally binding - generally, (smart) employers will include a clause in their employment contract stating that you are to adhere to policies but that those policies do not form part of the contract. If that is the case, then your friend is legally bound by the terms of the policy and will breach their employment contract if they do not adhere to this policy. This is unlikely to be an issue of contract law in and of itself - your friend cannot unilaterally bind their employer to terms as he sees fit. More information - including the nature of the document and other agreements that were made - would be required to provide more useful information (and that's what you would give to a lawyer). | 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. | The fact that a developer is showing off work that he/she has done for other another company doesn't imply that that developer owns any copyright to the work. In Canada, see the Copyright Act, § 13 (3): Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright and § 13 (4): The owner of the copyright in any work may assign the right... In the US, see 17 U.S.C. § 201 (b): In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. and § 201 (d): The ownership of a copyright may be transferred... "What rights should and should not be attributed to the developer?" That is a business decision to be made on a case-by-case basis. Advice about the prudent balance of copyright between an employer/client and employee/contractor is legal advice. "Is it okay to use this projects as part of the developer's portfolio?" If the developer can link to public use of a product that he/she developed for a company, then the developer is not violating copyright by simply advertising that they worked on the product and linking to, without reproducing, the work. If the developer for whatever reason maintained copyright ownership in the code and other assets, it would not be copyright infringement to reproduce those as part of the portfolio. If the developer did not maintain copyright ownership in the code or assets, reproducing those may be copyright infringement, dependent on whether the copyright owner allowed the developer to reproduce those elements, or if the reproduction is fair use. There may be other laws or contracts implicated, though: non-disclosure agreements, trademark law, among others. | "Backlogged" has no legal status. Under usual contract terms, all intellectual property you generate as part of your employment belongs to your employer. But "intellectual property" is a category of rights, such as patents, trademarks and copyrights. An idea by itself is not intellectual property. "Wouldn't it be great if ..." cannot be owned by a company. However, specific ideas can be trade secrets, and trade secrets are protected. It's likely that your idea is a trade secret, if the idea applies to the sort of business that your ex-employer is involved in. The fact that it's called promising by the company reiterates that. | What happens is the same as if you were an employee in the office, staying with the company for another few years. You are an agent for the company, and everything you do is as if the company was doing it (except for extreme circumstances). A company employee broke your laptop. It's the company's problem. They should have insurance for this kind of thing. And they told you to work from home, so if something happened because you are at home, that's the company's problem as well. It could be different if your company had told their employees not to have any fluids anywhere near their computers, and you had acted against this. Or my company doesn't allow me to take my works computer with me on a holiday; if I did without explicit permission and it got damaged, that would be my problem. |
Is texting interoperability between Google and Apple against the First Amendment? Google and Apple smartphones are incompatible when communicating via text messaging. You can't send more than one picture back and forth. You can't send video. You can't send texts without the text breaking up. Text messages being broken up is also an issue between phone carriers because their APIs are not the same for SMS. And as of 2020, you can't send texts to groups. Text messaging is a means of communicating but you are limited in that regard. Would this be against the First Amendment of the US Constitution? | The First Amendment says that the government cannot pass law restricting speech. It does not say that everyone is compelled to take actions that enable others to speak. The First Amendment would tend to work against your plan, because Congress generally can't pass a law to force people to "speak" in a certain way, and Congress cannot pass a law forcing you to provide your soapbox to your opponents. As an expressive matter, Google is expressing its right to "speak" in a particular manner, one that happens to not agree with how Apple talks (which is their right). However, the Commerce Clause of the Constitution is widely invoked as a means of compelling businesses to do something. If the government has a compelling interest in a certain end, Congress might pass a law that forces companies to do something. The political part, which you'd have to undertake, is persuading Congress that... the government has a compelling interest in [fill in the blank] w.r.t. phones, or computers, or what-have-you. Congress sometimes leaves such matters to the market, so that a competing company that unifies all communication could have a competitive advantage and could be more successful than a company that was more proprietary (although, at a certain point that advantage becomes a disadvantage and anti-trust actions take place). It's just a matter of persuading enough Congressmen to pass an appropriate law that does what you want done. By reference to the Commerce Clause, other considerations of constitutional rights can usually be finessed, although Google and Apple's First Amendment rights can't trivially be swept away by saying "effecting interstate commerce". | The First Amendment forbids the government from abridging your freedom of speech. There is no (federal) law against your private employer doing so. A good summary is https://www.americanbar.org/publications/insights_on_law_andsociety/15/winter-2015/chill-around-the-water-cooler.html | If you say something twice, eventually they’ll be in conflict Law codes are vast. They deal with many things and sometimes, as here, they deal with the same thing twice. If they duplicated themselves, rather than cross-referencing, every time the law was changed, every single instance would have to be tracked down and changed. Admittedly, that is not as big a problem with digital codes (but still not infallible and definitely time-consuming) but when these would have to be found by hand, it was damn near impossible. Written this way, change it once and it’s changed everywhere. My first boss taught me that. The fired was engineering rather than law but the principle is the same. | When you use other services, the question is whether that service acts as an independent data controller, or as a data processor who only uses the data on your behalf. When engaging a data processor they must be legally bound to only use the data on your behalf, for example with a contract / data processing agreement (DPA). See Art 28 GDPR. Data processor status is attractive because processors are seen as an extension of the controller. In contrast, when sharing data with other controllers you would need a separate legal basis to authorize this sharing. Google offers tons of different services, so this question needs to be considered on a case by case basis. For Google Cloud services or Google Workplace, Google generally acts as a data processor. For other services, Google acts as a controller. Notably, Google Fonts does not offer a DPA so that you cannot claim they're acting as a processor in that context, regardless of what other Google services you use. An equally important problem when using Google services is the data transfer problem. Google is controlled from the US, but the US do not offer an adequate level of data protection (see the Schrems II judgement). Comparatively few Google services allow you to select where the servers are located, as to prevent transfers of personal data to countries where privacy cannot be guaranteed. For example, this is why Google Analytics (GA) is problematic. Google acts as a data processor for basic GA features but makes no promises about the location of servers. Thus, using GA implies a (probably) illegal transfer of personal data to the US. | 47 USC 227 forbids anyone to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice...to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States where an automatic dialing system is equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. This prohibition covers voice calls, SMS and MMS, see Satterfield v. Simon & Schuster, Van Patten v. Vertical Fitness and Facebook v. Duguid. I assume that the messages are send automatically, not by hiring hundreds of people to enter numbers and send individual texts. Since businesses have been sued for doing this, a lawsuit is one of the consequences. | The English language does not have the equivalent of the French Academy to officially regulate questions of spelling, grammar, punctuation and word meaning. Jurists don't control how the language is used and for the most point don't bother to try to do so. Also, context almost always clarifies this particular ambiguity. | 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. | 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. |
Can I release all my copyrighted works into the public domain upon my death? I would like all my copyrighted works into the public domain immediately upon my death (rather than the current United States law specifying that it will be released 70 years after my death). Is this possible to do, for instance by putting a statement to that effect in my last will and testament? To clarify, I would like this to be for all works not otherwise specified in my will, including those unpublished. For instance, if I scribbled something on the back of a napkin that becomes valuable after my death, I want it to be in the public domain instead of retaining copyright. | Under US copyright law, all works are protected by copyright except for US Government works. The concept of "public domain" is not legally well-defined, and is used colloquially to refer to government works, works whose protection has expired, works available to all, and works not copyrightable (such as scientific laws or old software). Under older copyright law, releasing a work without the copyright symbol effectively put the work in the public domain. One can simply say "I dedicate this work to the public domain", and that is typically taken to be enough. CC0 purports to do this (using more words). However, as far as I can tell, author rights under European law are so strong that it is simply impossible. Releasing works into the public law has to be consistent with other aspects of the law. If you grant an perpetual exclusive right to copy and distribute to a publisher, their right does not go away on your death (a right which they would not have with a real public domain work). A problem is that an author who makes such a dedication (a bare license) could revoke the license and reassert their copyright. They could be estopped from making that argument. As property, your heirs would inherit the copyright and could (try to) revoke the license. Presumably the courts would not allow them to pursue ostensive infringers. Nevertheless, your plan is neither trivial nor bullet-proof. | This would likely be considered a derivative work. You would need permission from the copyright holder to make it, especially if you intend to distribute it for profit. | You might be able to use a site like the Internet Archive to preserve the TOC even after the site is shut down. The real liability trap here is if the site does not have the authority to give you this license. If a user uploads a photo that they do not own, and you use it, you are infringing the copyright of the original owner. Innocent infringement is not a defense to liability (although it may reduce damages in some cases.) | Yes. The copyright owner of a work has the exclusive right to "reproduce the copyrighted work" or to make "derivative works" of it. 17 USC 106. Copyright law is older than the photocopier, and it applies to copies made by means of any technology. If your intent is to duplicate the protected work, whether you do it by tracing, photocopying, or even freehand, you are infringing that right. It is possible that you could squeeze into one of the copyright exceptions, such as fair use, but these are much narrower than people tend to assume they are (especially outside of the U.S.), and they boil down to: "Well, yes, I copied your copyrighted work, but..." The bottom line is: is it copyrighted? Did you copy it, in whole or in part? Then, unless you have a very good reason, you've infringed the copyright. Whether you do it by means of tracing paper, jellygraph, or iPhone doesn't matter. | 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. | I want to use a couple of lines from "What is life?" by Erwin Schrödinger as quote on the front of my thesis. Would i need permission for that form publisher or would that be convered in fair use? There are close cases of fair use, but this is not one of them. This is unequivocally and clearly fair use. It is a brief excerpt of a much larger body of work, it is for non-commercial use by a student, and it is for educational and academic purposes (presumably to advance science). Also do i need to attribute the quote properly Yes. This is necessary both because of the moral rights of the author under E.U. copyright law (assuming that works by Erwin Schrödinger are still in copyright), and for reasons of academic ethical considerations. It is still in copyright, because he died on January 4, 1961, which is 58 years ago. So, in countries that protect copyrights for the life of the author plus 50 years (the minimum required by the Berne Convention) this is out of copyright, but in countries that protect copyrights for the life of the author plus 70 years (e.g. Germany), the copyright is still in force until January 4, 2031. Also, even if the work were out of copyright, as a matter of academic integrity, you would be required to attribute the quote in an academic thesis in any case. Quoting someone without attribution in academic work is considered plagiarism, and could result in your thesis being stricken and also in your degree being revoked in a serious case. Government ministers in the E.U. have been forced to resign over plagiarism in their academic work as students in recent years. This is taken much more seriously in Europe than it is in the U.S. | Those posts are talking about making a modified copy of a copyrighted work. The key word is copy. You are not making a copy. Copyright is not about how a physical embodiment of a copyrighted work is treated. You can burn a book and shred a newspaper. Neither of those actions is making a copy. Also, cutting up a newspaper and pasting a picture on your wall has nothing to do with any “derivative works” issue. | First Sale Doctrine One of the rights a copyright holder has is an exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending". 17 U.S.C. 106(3). This is distinct from the reproduction right they have to make copies or derivative works. So, absent a licence, you can neither make the model nor distribute the model. If you are operating under a licence, that is a legally binding contract between you and the copyright holder. If it says that you cannot give away models, then doing so is a breach of that contract and a breach of copyright for which you could be sued. However, if you did sell or give away the model to a third party, that would be a lawful transfer of title in the object itself, even though it is a breach of contract. An innocent third party (i.e. one who has no knowledge of the breach) would be a lawful owner and could do what they liked with the object and, under the first-sale doctrine, is not bound by the licence. If you were to die, the executor or administrator of your estate would be bound by the terms of the licence (whether they knew about them or not), and if they breached them, they would be liable for that breach. If done in good faith, they could seek indemnity from the estate, but if the estate has insufficient funds or has been finalised, they would be personally liable. This is largely theoretical as the copyright owner would have to pursue their claim so promptly that unless they were actively monitoring the death notices for anyone who ever downloaded their model, they would miss their chance. A third party who received the physical model from the estate, either by buying it or being given it as a beneficiary, would own it and have first-sale doctrine rights. Although originally a US concept (Bobbs-Merrill Co. v. Straus 1908), it is my understanding that the first-sale doctrine has since spread to all common-law countries. The last was Australia in Calidad v Seiko Epson [2020] HCA 41. ... the public ... The above analysis presumes that the people you are gifting the models to are "the public". This may not be the case where the models are distributed to a small circle of people like family and friends. In that case, there is no general right of distribution, and the copyright owner would need to rely on their right of reproduction. That is, in making the copy in order to give the object away, you breached the licence. This becomes problematic when your decision to give away the object happens later, possibly years later, possibly after you're dead. So, it might not be a problem for the executor or administrator to distribute the object to a beneficiary, but it might be a problem to sell it at a deceased-estate auction. The former is not distribution to "the public"; the latter is. |
Does a dual citizen who changes their name in one country have an obligation to change it in the other? I am asking specifically with regard to the USA and Australia, although I am interested in more general answers also. As per the title, I am wondering if someone immigrates (in this case to the US) and changes their name (an option granted when obtaining citizenship), do they have an obligation to change it in other countries they may be a citizen of? My thinking is no, as each country has their own courts and records, and as long as all names are declared and there is no malicious intent, no laws are being violated, but I am unsure. | No. Both your country of origin and your new home country will only care of your name as in the documents issued by each of them respectively. Mind though that absence of obligation to synchronize your names does not mean that you can freely use both identities within one country. For example, opening a bank account in the US using your original passport/name when you are already officially using another name there would be a very grey area bordering with identify fraud as it would effectively enable you to operate two different identities to gain any benefits not otherwise available. | There is a report about a male-to-female transgender woman here: http://www.abc.net.au/radionational/programs/lawreport/2017-06-27/8651398#transcript She managed to do the following: 1. While legally being a male, she got a preliminary passport as a woman so she could travel to Thailand, have an operation, and not run into trouble returning with a male passport and a female body. 2. While legally still being male, but with a female body, she married a woman in Australia. That was fine because legally she was male. 3. She has received a passport as a female. 4. She was refused a change of her birth certificate as long as she is married. So the current state is: She is (in fact, biologically) a woman. She is married to a woman in Australia. That marriage is perfectly legal, however, it is officially a marriage between a man and a woman. She has a woman's passport. The Australian government cannot and doesn't want to do anything to make her marriage illegal. BUT she cannot change her birth certificate without getting divorced first, and if she got divorced and changed her birth certificate, she couldn't remarry the same woman, or any other woman. | This is answered here. According to Wikipedia, birthright citizenship was extended to children with citizen mothers and noncitizen fathers in 1934; the text of that law seems to be found here. The 1961 Supreme Court ruling that Salon is referring to seems to be this one, but they are interpreting the law as it stood in 1906, not 1961. Petitioner, whose mother is a native-born United States citizen and whose father is a citizen of Italy (their marriage having been in the United States), was born in Italy in 1906 while his parents were temporarily residing there, and entered the United States with his mother later the same year. | It is well known and often repeated that China does not tolerate dual citizenship, except in the case of its citizens who have right of abode in Hong Kong or Macau. The Chinese Nationality Law is clear about this: Article 3. This is not true and you misunderstand what Article 3 says. Article 3 says (depending on your translation): The People's Republic of China does not recognize dual nationality for any Chinese national. The only way I think this can be interpreted is that, if a person were to statutorily have both Chinese nationality and foreign nationality under each country's respective laws, then the PRC would only recognize their Chinese nationality, and not recognize their foreign nationality. This article does NOT mean that nobody can have dual nationality under the law. In order to "recognize" or "not recognize" something, it presupposes that the thing exists. If nobody had dual nationality under the law, then this article would be meaningless, as there would be no point to "not recognize" something that nobody has anyway. This article only matters to someone who truthfully has dual nationality under PRC and foreign law. Given someone who truthfully has dual nationality under PRC and foreign law, since dual nationality is not recognized, which nationality is recognized and which is not? Since Article 3 says "Chinese national", it implicitly recognizes the person's Chinese nationality, which means it's the foreign nationality that is not recognized. (This, by the way, is essentially identical to the US position -- the US only recognizes the US nationality of a dual national.) It is true that true dual nationality of the PRC and a foreign country is uncommon, but that is mainly due to Articles 9 (which says a Chinese national naturalizing abroad automatically loses Chinese nationality) and 8 (which says that a foreign national who naturalizes to get Chinese nationality shall not retain foreign nationality). It is not because of Article 3. By the way, when I say someone who has dual nationality of the PRC and a foreign country, it does not include a Chinese national who has naturalized abroad, who is subject to Article 9 but continues to use/obtain PRC passports and/or continue to exercise the rights of a Chinese citizen. De jure, this person no longer has Chinese nationality, even if the PRC government is not aware of it yet. When discovered, they will be treated as only a foreign national, and that is consistent with my explanation, since this person does not de jure have Chinese nationality. Any documents issued to them reflecting Chinese nationality after their foreign naturalization, were issued in error. Article 3 is irrelevant for such a person since there is no question of "recognizing" dual nationality for a person who does not legally have dual nationality. So who are the people who truthfully have both PRC and foreign nationality? There are several cases. First, as you noted, this is possible for many people in Hong Kong and Macau, due to explanations of the PRC nationality law for those territories. For example, in the one for Hong Kong, items 2-4 say that Chinese of Hong Kong are Chinese nationals despite holding foreign passports. They do not have foreign consular protection while in Hong Kong and the rest of China, (unless they choose to apply for change of nationality to foreign nationality, effectively renouncing Chinese nationality). It says their foreign passports can be used for traveling to "other countries and territories" (implying that they cannot be used to enter Hong Kong or the rest of China). This supports my explanation of Article 3 above, that the PRC only recognizes the Chinese nationality of a dual national, and does not recognize their foreign nationality. Another case is a child born in China to one Chinese citizen parent and one foreign national parent who meets the conditions to automatically pass on foreign nationality to the child at birth according to that foreign country's law. According to Article 4, a child born in China to at least one Chinese citizen parent is automatically a Chinese citizen, without regards to whether the child also has foreign nationality at birth, or anything else. Any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. And finally, we get to the case you mentioned, for children born abroad. Article 5 deals with children born abroad, and it says that a child born abroad to at least one Chinese citizen parent automatically has Chinese nationality, except when at least one parent is a Chinese citizen who has settled abroad, AND the child has foreign nationality at birth, in which case the child will not have Chinese nationality. Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality. Because they wrote it with an "and", it means that children who had foreign nationality at birth but where neither parent was a Chinese citizen who has settled abroad, will have Chinese nationality at birth. If they had wanted to make it so that children born abroad could not have both Chinese nationality and foreign nationality at birth, they could have written it with an "or", but they didn't. Unlike some other countries, the PRC nationality law does not require that children born abroad be registered at a PRC consulate with a declaration that the child does not have a foreign passport in order to get Chinese citizenship. Nor does the PRC nationality law provide that dual national children lose their Chinese nationality if they don't renounce foreign nationality at a certain age. Since you specifically ask about children born in the US, they will all have foreign nationality (US citizenship) at birth (ignoring cases of children born to diplomats). So it only depends on the other condition (whether at least one parent was a Chinese citizen who has settled abroad). The PRC government interprets "settled abroad" as having foreign permanent residency (e.g. US green card). So assuming the only relevant foreign permanent residency is the US green card, here is a table summarizing whether a child born in the US has Chinese nationality at birth, based on the status of the parents: Chinese citizen without green card Chinese citizen with green card non-Chinese citizen Chinese citizen without green card Yes No Yes Chinese citizen with green card No No No non-Chinese citizen Yes No No The current procedure at PRC consulates (both in US and in other countries) is that they issue PRC Travel Documents (旅行证) instead of PRC passports to children born abroad, who have both Chinese nationality (as determined by Article 5) and foreign nationality at birth, who wish to travel to China. These Travel Documents are passport-like booklets, are valid for 2 years (can be re-applied for again after expiration), and contain a Chinese and an English info page, both of which say, among other things, The bearer of this Travel Document is a citizen of the People's Republic of China. [...] Having a US passport does not preclude the issuance of the Travel Document. In fact, the consulate expects the child in this case to have a US passport and requests the US passport information as well as the physical US passport during the application process, if the child already has one. The consulate clearly has no problem recognizing the child as a Chinese citizen even if they know that the child has US citizenship and a US passport. This Travel Document can be used to enter and exit China. When exiting China, the child would present both the PRC Travel Document and the US passport at PRC exit controls. The border control officer will recognize, upon seeing the Travel Document, that this is the routine procedure for a dual national child, and it will not lead to problems like when both PRC and US passports are presented (even though both the PRC passport and PRC Travel Document say inside them that the bearer is a citizen of the PRC). As you can see, having a US passport is not incompatible with the PRC's recognition of the child's Chinese nationality. If the PRC Travel Document is lost or expires while in China, the child can get a PRC Entry/Exit Permit (通行证), which again can be used with the US passport when exiting China with no problems. When back abroad, the child can again apply for a PRC Travel Document at a PRC consulate the next time they need to travel to China. Although it is possible for the child to be added to hukou while in China, the child should not apply for a PRC passport, as it seems this will cause problems when exiting China, as you mentioned. The child should stick to Chinese Travel Documents and Entry/Exit Permits. I have heard rumors that the consulate might no longer issue PRC Travel Documents to such a dual national child after turning 18 (perhaps forcing the child to renounce either PRC or foreign nationality), but I haven't seen any official source on this, and the PRC nationality itself does not mention any need to do anything at any particular age. As for renouncing US citizenship, US law requires that loss of US citizenship can only occur when the person intends to relinquish US citizenship, and young children are considered to lack sufficient maturity and understanding of the meaning of renunciation of citizenship, and be too much under the influence of parents, to have the necessary voluntary intent. The Foreign Affairs Manual presumes that an age of at least 16 is generally necessary to renounce US citizenship. See 7 FAM 1292(i)(2): Voluntariness and intent: Minors who seek to renounce citizenship often do so at the behest of or under pressure from one or more parent. If such pressure is so overwhelming as to negate the free will of the minor, it cannot be said that the statutory act of expatriation was committed voluntarily. The younger the minor is at the time of renunciation, the more influence the parent is assumed to have. Even in the absence of any evidence of parental inducements or pressure, you and CA must make a judgment whether the individual minor manifested the requisite maturity to appreciate the irrevocable nature of expatriation. Absent that maturity, it cannot be said that the individual acted voluntarily. Moreover, it must be determined if the minor lacked intent, because he or she did fully understand what he or she was doing. Children under 16 are presumed not to have the requisite maturity and knowing intent; | No. Separate documentation of change of name, taken together with the original marriage certificate, should suffice. | australia There is no limitation on the number of names you can have so long as it is at least 1. You cannot have a prohibited name (NSW Births Deaths and Marriages Registration Act 1995, other states are similar): "prohibited name" means a name that-- (a) is obscene or offensive, or (b) could not practicably be established by repute or usage-- (i) because it is too long, or (ii) because it consists of or includes symbols without phonetic significance, or (iii) for some other reason, or (c) includes or resembles an official title or rank, or (d) is contrary to the public interest for some other reason. (b)(ii) prohibits you from having the name "0". However, having any particular name does not mean that a passport will be issued in that name. The Australian Passports Act 2005 says: (4) The Minister may refuse any name or signature of the person that the Minister considers to be unacceptable, inappropriate or offensive. If the Minister decides that you need 2 or more names to get a passport - you need 2 or more names. AFAIK, no Minister has ever decided that. | Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries. | German law protects the Right of Personality, of which the Right of Publicity is a part. The Right of Publicity protects individuals from having their identity exploted for someone else's gain, without their permission. Using an individual's likeness in the way you describe would violate this, including that of non-German citizens. Depending on what you used this image for, you would potentially face a civil suit. Changing aspects so they're unrecognizable would likely depend on the specifics and intent would count. Honestly, if you're going to change them to be unrecognizable, why even bother- just create an original character. This right lasts for 10 years after the individual's death- during this time it is controlled by the deceased's estate. After 10 years, you would be able to use them this way. |
Can the government ban a substance made entirely out of other legal substances? Marinol, as I am sure many of you know, is synthetic THC. THC is the main psychoactive chemical in Cannabis. It gets prescribed for numerous ailments. Apart from THC, all cannabinoids are more or less completely legal (and most have medically known benefits that are well accepted). Can there be a legal argument there? Something along the lines of since all its constituent chemicals are either legal or medically prescribed it must not be scheduled in its current state. The reductio ad absurdum being that not doing so says the combination of otherwise legal or prescribed(and allowed federally), are somehow creating a new substance. This seems to be like saying that peanut butter and chocolate are fine, but Reese's Cups will put you in jail. | Yes, it can First, your argument is scientifically vacuous - Sodium and Chlorine are highly dangerous substances - Sodium bursts into flame on exposure to air and Chlorine is both toxic and corrosive. Sodium Chloride is table salt - dangerous in its own way but not in the same class. The same is true in reverse of petrol and superphosphate (fertiliser) apart they are relatively benign, together they are a mining explosive. Second, even if your science was valid, it wouldn't matter. If the government wants to ban substance A and not substance B they have the legal power to do so. | In general property owners and employers can impose any rules on their property and employees (respectively) that are not prohibited by law. Granted, there are extensive statutes and regulations to protect "employee rights." I have not heard of protections that include "possession of prescribed medications," but that does not mean they don't exist in your jurisdiction. If you really want to know whether you have a legal right as an employee, and you can't find it in written law or regulation, you would have to consult regulators or employment law attorneys in your jurisdiction. (As a practical matter, of course, it might make sense to first find out whether one's employer wants to assert a policy infringing the right in question.) | Would I be allowed to market this product as "Cocaine cola" or "Cocaine soda?" england-and-wales Possibly not if you were to try and register the name, as this may well fall foul of s.3(3)(a), Trademarks Act 1994 which says: A trade mark shall not be registered if it is— (a) contrary to public policy or to accepted principles of morality... The government's Manual of Trade Marks Practice, at section 5.8, explains that: Marks which may be ‘contrary to public policy’ are those, for example, that make specific references to illegal drugs such as cocaine... (my emphasis) | According to the NIH, there are in fact a number of laws in the US regulating human research, as opposed to codes and conventions (although the majority does consist of the latter). 1962 - Milestone: Kefauver-Harris amendments to the 1938 Food, Drug, and Cosmetic (FD&C) Act, [Public Law 87-781; 76 Stat. 788-89] This amendment was important in establishing that human testing was necessary in drugs and therefore provided for the regulation of human testing, after the thalidomide scandal caused a number of preventable birth defects due to insufficient human testing. The FDA describes the law as (emphasis mine): ... The Kefauver-Harris Drug Amendments also asked the Secretary to establish rules of investigation of new drugs, including a requirement for the informed consent of study subjects. The amendments also formalized good manufacturing practices, required that adverse events be reported, and transferred the regulation of prescription drug advertising from the Federal Trade Commission to the FDA. 1974 - Milestone: National Research Act The National Research Act legally justifies and grants the NIH the power to set up boards to regulate human medical research: SEC. 102. (a) Congress finds and declares that (1) the success and continued viability of the Federal biomedical and behavioral research effort depends on the availability of excellent scientists and a network of institutions of excellence capable of producing superior research personnel ; (2) direct support of the training of scientists for careers in biomedical and behavioral research is an appropriate and necessary role for the Federal Government ; and (3) graduate research assistance programs should be the key elements in the training programs of the institutes of the National Institutes of Health and the Alcohol, Drug Abuse, and Mental Health Administration. (b) It is the purpose of this title to increase the capability of the institutes of the National Institutes of Health and the Alcohol, Drug Abuse, and Mental Health Administration to carry out their responsibility of maintaining a superior national program of research into the physical and mental diseases and impairments of man. | Many times. See pages 4 and onward here. The 11th circuit (which includes FL) recognizes sentencing manipulation but not sentencing entrapment. The one example from the 11th circuit in that document (US v. Ciszkowski, 492 F.3d 1264) was an unsuccessful claim of sentence manipulation, but it shows the analysis that goes into deciding these types of claims. They say: While our Circuit does not recognize sentencing entrapment as a viable defense, we do recognize the outrageous government conduct defense, and we have considered sentencing manipulation as a viable defense. ... Ciszkowski, however, has not met his burden of establishing that the government's conduct is sufficiently reprehensible to constitute sentencing factor manipulation. Government-created reverse sting operations are recognized and useful methods of law enforcement investigation. Sanchez, 138 F.3d at 1413. The fact that law enforcement may provide drugs or guns essential to a willing and predisposed offender does not necessarily constitute misconduct. We have previously declined to find that the government engaged in prohibited sentencing factor manipulation in other similar contexts. | Practicing medicine without a license or beyond the scope of your license (e.g. engaging in medical activities that your license does not authorize you to engage in, even though you have license to engage in some medical activities) is a criminal offense (e.g. Unlawful Conduct Of Practicing Medicine Without a License, Utah Code Ann. §58-1-501(1)(a) and 58-67-501) in most jurisdictions and is not protected by the privileges afforded to people practicing medically within the scope of their license (e.g. an exemption from laws criminalizing contact with intimate parts when done for medical purposes). Of course, fraudulently claiming to have licensure is also a crime over and above practicing without a license. Administering non-FDA approved medicines to cancer patients, for example, is a federal crime, even if this is done with full disclosure and good intentions. The approval process is described here by the Food and Drug Administration under the Federal Food, Drug and Cosmetic Act. (Similarly, a conviction was obtained in another case for distributing a hormonal weight-loss treatment without a license.) For example, in 2006, a naturopath in Wheat Ridge, Colorado was convicted of "theft, perjury, criminally negligent homicide, illegal practice of medicine and third-degree assault" for providing alternative holistic treatment to someone resulting in their death. Criminal negligence generally involves conduct sometimes also called "gross negligence" that is not just careless but is almost reckless given the serious potential harm that could foreseeable result (and in all cases that are prosecuted, actually did result) from the course of conduct taken. For example, while ordinary medical mistakes by a medical doctor such as confusing two drugs with similar names or putting the decimal point in a prescription dosage, causing harm to a patient, would not ordinarily result in criminal liability, coming into an operating room while too drunk to drive and without reviewing which limb of a patient needs to be amputated despite a clear indication in marker on the leg of a patient showing that fact, might constitute criminal negligence on the part of a medical doctor. Here, if the need for and possible benefits of conventional treatment for breast cancer with particularly clear, prescribing alternative diet based treatment and mental exercises while discouraging conventional medical treatment, might very well constitute criminal negligence on the part of the holistic practitioner. Similarly, a naturopath was criminally charged in Australia with "reckless grievous bodily harm and failure to provide for a child causing danger of death" for urging parents to discontinue medical treatments for a child in favor of a raw food diet, causing serious harm to that child almost causing the child's death. The naturopath admitted that she endangered the child with her medical advice and was ultimately convicted in that case. Liability would be fact specific. Does the person have a license of some kind? Are they within the scope of their license? Do they falsely convey the impression that they are licensed medical practitioners? Did their actions constitute the practice of medicine? But, often, in the fact pattern you describe, particularly if it is not "faith healing" protected by the freedom of religion, this would be a crime. Of course, this doesn't mean that a self-help remedy of murdering the holistic practitioner after the fact is legal. Civil liability for professional negligence and failing to meet the applicable standard of care for a person engaging in the kind of treatment conduct described is also possible. In other words, one can sue a naturopath of money damages for malpractice, just as one could sue a doctor for malpractice. As noted here: Alternative medicine providers can, of course, be guilty of malpractice if they perform their interventions below the commonly accepted standards of their own communities. They may also have liabilities for injuries caused by discouraging patients from seeking conventional care and, in some jurisdictions, for not recognizing when a patient’s condition is beyond the scope of their form of treatment and subsequently referring the patient for treatment by a medical doctor. The fact scenario in the Slate article would appear to implicate grounds for civil as well as potentially criminal liability. | The Constitution only regulates the powers of the government; it doesn't directly say what the people can and can't do. In particular, it doesn't say directly that nobody except Congress can coin money. However, it does give the government the power to make laws, which are binding on the population. So Congress possibly could make a law forbidding cryptocurrencies, or at least regulating them, under the "regulating the value thereof" clause. However, they haven't done so. In the case of the Liberty Dollar, there are some specific laws that apply. They were convicted of violating 18 USC 485, which forbids the making of physical gold or silver coins that resemble US or foreign money, and 18 USC 486, which forbids creating or passing any physical metal coins as money (as well as other conspiracy charges, aiding and abetting, etc). None of these laws apply to cryptocurrency because they are not physical metal coins. Given that Congress has been explicitly given the power to coin and regulate the value of money in the United States, how are cryptocurrencies, such as Bitcoin, Ethereum, and Basis created, distributed, and redeemed such that they have not been found unconstitutional? The power to regulate includes the power to not regulate. As a slight tangent, what laws allow for the creation and distribution of cryptocurrencies? In a free society, "everything is permitted that is not forbidden". We don't need a law specifically allowing the creation and distribution of cryptocurrencies; it's sufficient that there is no law that forbids it. | In the United States, no. For something to be illegal in any meaningful way, you have to be able to point to a law that makes it illegal. If there's no law to break, it's not illegal. I would wonder if your colleague was thinking about question of whether cryptocurrencies are legal tender. For something to be "legal tender," there would need to be some kind of law or regulation requiring people to accept them as payment. There is no such requirement in the United States, so Bitcoin, for instance, is not legal tender. But that doesn't make it illegal tender; it just means that people can decide whether to accept it or not. |
Could someone be found guilty of hit-and-run in Calfornia if they didn't know they hit something? Suppose someone were accused of hitting another vehicle with their vehicle. Suppose that the vehicle were sufficiently loud, bouncy, and difficult to maneuver (for instance, a 1970 Ford F250) that the driver did not realize they hit anything. If the driver would have known, they would have stopped and given their insurance information. If the driver is charged with hit and run (in Los Angeles County, California), what does that mean for the driver? | 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. | Threatening to report the uninsured driver to avoid payment would be blackmail and illegal / criminal. As a result, they are not going to do this. Reporting the uninsured driver on the other hand is their civic duty. So they can get your friend into trouble, but they can't get around paying. Is your friend insured now? If not, tell him to get insured IMMEDIATELY. And if they are very lucky, the other company doesn't figure out your friend was uninsured, and they get away with it when they make a claim. Alternatively, tell them to figure out how much the damage is, how much the repair will cost, and whether it is worth taking the risk. | Bad people are quite uncommon Most people behave in good faith most of the time - don't tie yourself in knots over the very few people who would be unscrupulous enough to try to do this. Burden of proof The person who makes the allegation has the burden of proof on the balance of probabilities. So the person who claims they didn't receive it has to prove that. If there are two equally credible witnesses, one saying they packed and posted the thing and one saying the thing was not packed then the burden has not been met. If the person who packed it has a photo of it packed and addressed then the other person has definitely not met their burden of proof. Insurance Insure it against loss or damage in transit. Then you can just replace it and claim on your insurance. | The damages should be granted. The “dirty hands” doctrine is only applicable when seeking equitable relief - motor vehicle damages fall under the tort of negligence. | Not necessarily. Your own statements and the statements of the officer would be legally sufficient to convict you. Also, your statement that you don't believe you are at fault is strongly at odds with a widely held interpretation of the traffic laws (not stated in the formal language of these statutes). The prevailing interpretation of the traffic laws is that you are always at fault if you rear end someone because you failed to maintain a safe distance, pretty much as a matter of strict liability and regardless of the circumstances, because a safe distance is almost by definition a distance that it is possible for you to come to a full stop from if the care in front of you suddenly comes to a stop for any reason. The only situation I can imagine where there wouldn't be liability for rear ending someone would be if you were at rest behind them at a stop light and they actively backed up into you. In practice, almost any judge and almost any jury, would convict you of failure to maintain a safe distance if you rear ended someone absent the most extraordinary of circumstances. I honestly don't know any lawyer or likely potential juror who wouldn't convict you under these circumstances with only the testimony of the police officer and your own testimony (which you would have to offer to have any shot at avoiding a conviction) to establish that you did indeed rear end someone. Police are allowed to lie to suspects of crimes, and often simply do not have an accurate understanding of how the legal system works. So, you are not entitled to rely on a statement made by a police officer. Of course, it is also certainly possible that his statement is consistent with local practice in your neighborhood traffic court. So, showing up to contest the charge might still make sense, and it wouldn't be uncommon to receive a plea bargain with fewer points against your license, just for showing up to court. | From Rule 170 of the Highway Code: watch out for pedestrians crossing a road into which you are turning. If they have started to cross they have priority, so give way If this was indeed the case, then it suggests that the OP had right of way, and the driver was at fault. In any case, the driver should have indicated before turning. | While local law varies, most jurisdictions do not authorize citizens' arrests for traffic violations. Generally, citizens arrests are authorized only for misdemeanors and felonies outside the traffic code. Indeed, there are many traffic offenses for which law enforcement is authorized only to stop a violator and issue a ticket, but not even law enforcement is authorized to actually arrest someone. And there is no such thing as a citizen's citation or ticket. Citizens arrests also usually require that the citizen witnessed the crime in progress, but that requirement would be met in this case. If the case had been a hit and run, however, a citizens' arrest probably would have been legally authorized, although the wiser course of action would still be to call the police and to follow the offender at a safe distance. | Under Florida law (316.0083), an officer can view the infraction and issue a notification of infraction "to the registered owner of the motor vehicle involved in the violation". Thereupon, the owner has the right to remedies under §318.14, which include arguing that the owner did not commit the infraction. The camera evidence may sufficiently prove that an infraction was committed, but not necessarily that the vehicle owner committed the infraction. This is a civil matter, so the official who disposes of the appeal must determine whether it is more likely than not that the owner committed the infraction. That effectively means that in the face of evidence that the owner committed an infraction, some evidence is needed to show that the owner did not commit the infraction. Thus proof that he was not driving (I suppose witnesses to his whereabouts in Timbuktu on the day in question) would suffice, and there is no requirement that the owner prove someone else did the deed. |
Can I register to vote in Connecticut? I'm attending college in Connecticut, where I've lived on-campus for approximately 3 months. I'm from out-of-state, however, and reside in Connecticut only during the school year. Am I eligible to vote in Connecticut? The online registration form asks me to confirm that I'm a 'resident' before continuing. I've spent a considerable amount of time searching relevant resources and the internet, and there is a considerable amount of conflicting information out there. I've tried speaking with voter registration representatives, to no avail. | Yes, you can register in Connecticut. Connecticut previously limited voting eligibility to "permanent" residents, but it later changed that to limit it to people with at least year's worth of residency, and then six months' of residency. Under current law, though, a voter need only be a "bona fide" resident of "some town" in Connecticut. This means you need only to have legitimately moved into the city with some actual intent to stay, even if not forever. The deadline is tomorrow, so register now. | Election procedures are generally a matter of state law, so the process will be different from one state to the next. In Colorado, the law in question is Colo. Rev. Stat. § 1-11-101: If at any general or congressional vacancy election ... any two or more persons tie for the highest number of votes ... for representative in congress ... the secretary of state shall proceed to determine by lot which of the candidates shall be declared elected. The question then becomes how the secretary of state will "determine by lot" who is the winner. As far as I can tell, this process is not established by statute, nor has the secretary of state promulgated any administrative regulations establishing a system for drawing lots. In other states, it typically comes down to something quite random: flipping coins, drawing names from a hat, dealing poker, etc; I assume the secretary of state could choose any of these. The answer could be different for other races, though. Both chambers of the General Assembly would vote on a joint ballot to decide a tie in a race for governor, secretary of state, treasurer, or attorney general. This also assumes that Bob and Alice are facing off in the general election, not the primary. In a primary, tying candidates get to choose their own tiebreaker. If they can't agree on one, the secretary of state chooses by lot. | 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. | You have two questions here. A search by the government must be reasonable, under the 4th Amendment, meaning that a warrant is required or exigent circumstances must exist. Simple entering (without searching) is governed by Civil Code 1954. The law governing residential rentals is not explicit, because a a dormitory might be considered not to be a "residential dwelling unit". Some states explicitly exclude university dormitories, but that seems not to be the case in CA. There are some specific exclusions where dormitories are excluded (such as 1946.2 regarding termination), so the lack of an exclusion for dormitories can't follow from an assumption that a dormitory is not a residential dwelling unit. Clearly, a normal apartment that happens to be owned by the university and is rented out to students (as exist in many universities) clearly is an ordinary rental. So it seems that a dormitory is not legally exempted from 1954: they can only enter with permission or in specific circumstances. | When can I re-apply for the citizenship, there is no date mentioned on the letter received. You can reapply as soon as you meet the criteria. If you don't move again to another state or USCIS district, and if you don't spend so much time outside the US that you fail to meet the physical presence requirement, then you can reapply on the three-month anniversary of your move to your current place of residence. The criteria are available at USCIS's Naturalization Information page: Naturalization Eligibility Requirements Before an individual applies for naturalization, he or she must meet a few requirements. Depending on the individual’s situation, there are different requirements that may apply. General requirements for naturalization are below. Be at least 18 years old at the time of filing Form N-400, Application for Naturalization. Be a permanent resident (have a “Green Card”) for at least 5 years. Show that you have lived for at least 3 months in the state or USCIS district where you apply. Demonstrate continuous residence in the United States for at least 5 years immediately preceding the date of filing Form N-400. Show that you have been physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing Form N-400. Be able to read, write, and speak basic English. Have a basic understanding of U.S. history and government (civics). Be a person of good moral character. Demonstrate an attachment to the principles and ideals of the U.S. Constitution. | No. Because these laws are controlled by the states, there could theoretically be 50 different answers, but every state I've looked at so far (Arizona, Florida, Massachusetts, New Hampshire, Wisconsin) forbids using power of attorney to cast votes in a public election. In many states, a POA may not even request an absentee ballot for a voter. The general principle is that the POA can undertake any legal act the agent could undertake, except those "so peculiarly personal that their performance cannot be delegated." States generally treat voting as peculiarly personal. | There is no law governing the 'number' of the president. Common sense suggests that a person can't be 45th and 46th; there must be someone in between having the presidency and they will become the 46th president. In the extremely unlikely scenario that a foreign power occupies the United States this year, eliminates the office of President, and a few years later the US is liberated and Donald Trump is re-elected, I guess people could name him the 45th and 46th President, but it makes no sense to speculate about this. | "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). |
What happens if a creditor can't make it to the creditors meeting for bankruptcy? I am in the US, and have some foreign debts I will be declaring in my bankruptcy application, as well as some US debts where the people have since moved overseas. It's unlikely anyone living overseas or representing a foreign org would show up to the creditors meetings. I know that it is already unlikely that people show up, but my question is if they are unable to due to being overseas, does that give grounds for the bankruptcy to be challenged at a later stage? | Most creditors don’t turn up at creditors meetings Largely because it’s a waste of their time and incurs further expense on top of the money they will likely never see again. Unsecured creditors have virtually no power to control the bankruptcy. Almost all those who do, do so by proxy - usually nominating the trustee as their proxy. Proxy forms are distributed with the paperwork about the meeting, sign it, stamp it and drop it in the mail and you are “at” the meeting. Attendance is voluntary - not being there in person or by proxy will not invalidate anything done at the meeting. | Those countries have more restrictive gambling laws than others. For discussion of some of those relevant laws, see here. For example, [In Hong Kong], "Under the Gambling Ordinance, a prize draw is considered to be a form of lottery. Lotteries include raffles & sweepstakes... In most cases, prior approval is needed for a prize draw in the form of a licence and for the majority of competitions, this will need to be in the form of a Trade Promotion Competition Licence. Selling, disposing, printing and publishing tickets without a licence are criminal offences ... punishable by fines or imprisonment. Because of Italy's strict restrictions, Unless a promotion falls under one of exceptions provided by the DPR, it is not possible to run multi-jurisdictional promotions, they need to be addressed only to people located in Italy and any activity, including the server, used for the promotion must be located in Italy. | If I do some business travel for your company then I send you a bill for my working time and my expenses, and I expect it to be paid. If your shareholder does some business travel for your company, they can do the same. If they don't charge you for the working time, good for your company. Just expect the IRS to look at this bill more carefully than usual to make sure this is not in reality a dividend payment. For example, if the business travel was "two weeks in a five star hotel in Hawaii, all expenses paid", that wouldn't look quite right and cause trouble for both of you. PS: Cost of travelling to a company’s share holder meeting is not a business expense. | The registration office does not have access to your GEZ bill. They cannot deny you deregistration, but also cannot tell you whether your debts are settled. You might prefer to clarify this matter with the GEZ in writing rather than over phone, since you can more easily machine-translate an email or letter. | 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 the most likely case No, but you can make it happen! First - almost every patent is rejected - at first. Then you respond to the office action rejection by arguing and/or amending and - guess what - you are likely to get a final rejection. That means the rejection is final until you pay them more money to file a Request for Continued Examination and get two more go-arounds with them. Can you keep doing this? Yes. A previous director of the USPTO tried to make a rule that limited the number of RCEs - the courts knocked it down. If you give up and let it go abandoned by not responding to an office action within the statutory limit (6 months) then the process of that application is over. If you have not filed a co-pending application before the initial application went abandoned then you are really starting over if you file a new application. The original application can be used against any new application on a similar subject matter if it has been published. But it might not have published. The law (35 USC 102) contains - (a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless— (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or (2) the claimed invention was described in a patent issued under section 151 , or in an application for >patent published or deemed published under section 122(b) , in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention. Your application may or may not have been published. Then it is neither published or issued and does not fall under prior art under 102 or 103. Applications are automatically published by the USPTO at the 18 month point unless you requested non-publication. In that case if your application never issues it is never public and can't be used against you or anyone else as prior art. You could even decide to keep it a trade secret. Before the publication process came into being as part of TRIPS, an applicant could wait until they saw the claims that had been allowed and the patent was ready to go. If they didn't feel the claims were valuable enough they can chose to explicitly abandon and keep it secret. | Whoever buys it. When a company declares bankruptcy then its assets are owned by its creditors, as compensation for the standing debts. Since usually there are multiple creditors, what happens is that its assets are sold/auctioned, as money is easier to divide between the different creditors1. A logo or a trademark is an asset like any other and can be sold separately. If nobody did come forward for the logo, then one of the creditors could accept it as part of its repayment. 1 If a company is in bankruptcy it means that its assets cannot cover all of its debts, so creditors are usually paid only a part of their debts. | UK: For all I know you cannot be fired unless you are hired. They must hire you. Once a job offer is made and accepted, they must hire you. If they don't, call a lawyer. I personally know someone who got hired, and when he arrived for his first day's work at the new company, he found that the whole department that he was supposed to join had been laid of. The company had to hire him. PS. "Financial difficulties" means you call a lawyer urgently. Once they are bankrupt your chances of extracting money are not good. |
Copyright violations in creating original trivia questions based on popular books, videos and articles If I compose an online trivia quiz for general users, and create questions such as Q1) To which Hogwarts House did Harry Potter belong ? (based on a Harry Potter book) Q2) Does a honey badger attack a lion ? (based on a specific National Geographic video) Q3) Who said this in 2002 "..." ? (based on an article in say, TIME magazine) Is this a violation of any copyright law ? Am I expected to take explicit permissions etc. ? | Q1 and Q2 are definitely not copyright violations. Copyright protects original expression. Your questions are yours; the only things you are using are the names, and copyright doesn't cover them on their own. The quotation in Q3 might conceivably come under copyright. However in practice it is very likely to be fair use (unfortunately nothing is definitely fair use until a court rules on it, but I can't imagine a short quotation in a quiz being an issue). | The following answer is based on US-law. I am not a lawyer; this is not legal advice. If the book you read is in the public domain* you should be fine. Otherwise what you are doing is copyright infringement and probably not protected by fair use**. One of the rights granted to copyright holders is to control derivative works, and transference to different mediums, which is what your recordings would be. Under US law, whether an instance of copyright infringement is fair use is evaluated on a case-by-case basis, weighing four points: the purpose and character of one's use the nature of the copyrighted work what amount and proportion of the whole work was taken the effect of the use upon the potential market for, or value of the copyrighted work In my non-lawyer evaluation, point 1 depends on what you do in your video (unless you monetize your Youtube video, in which case it is likely to be decided against you), but if you are merely reading the book out aloud, it is unlikely to be in your favor (although it may not be against you as an "educational tool"). Point 2 depends on what is being read, with a informative work (e.g. a textbook) being more likely to be fair use than a creative work (e.g. a novel). Point 3 depends on how much and what proportion of a work you use; since you are presumably reading a whole book, this would most likely be ruled against you. Point 4 would almost certainly be decided against you, as you are essentially creating an unauthorized audiobook. In summary, you can read a book aloud. You can record your reading of it for your personal use. You should NOT upload it to Youtube, or other sharing sites. *Note that different countries have differing rules on when a book enters the public domain, and since the internet crosses borders, multiple rule sets may apply. | It depends on what information you are sharing, how you got it, and what rights the business asserts over the information. For example, if it is content created by the business and they claim copyright protection you can only use it without their permission in accordance with Fair use exceptions. If you obtain the information through some limited/conditional access agreement you would be subject to the terms of that agreement. As always: If you want a legal opinion specific to your use case you need to consult a lawyer in your jurisdiction. | Quoting content may or may not constitute copyright infringement, depending on the various factors that go into the fair use defense. Short quotes which are made for the purpose of discussion, research and commentary and not for copy would be squarely in the domain of "fair use" under US law. That means that the copyright owner would not succeed in suing you for quoting them: under the statutory mechanism for recognizing his right to his intellectual product, there is a limit on how much control he can exert over your behavior (since the two of you have not worked out some kind of agreement -- copyright law creates rights even when there is no contract). As for Facebook, you have a contract with them, embodied in the terms of service. You have been given permission to access material that they host (permission is required, under copyright law), and their permission is conditional. It says "you may access stuff on our platform only as long as you do X": if that includes a clause "don't be nasty", then that limits your right to speak freely and be as nasty as you'd like. If it says "don't quote even a little", that means you cannot quote even a little, even when you would have the statutory right to quote a little (or, to be nasty). Fair use would mean that you can't be sued for copyright infringement of the stuff that you quoted a little of. You can, however, be expelled from Facebook. You probably cannot be sued for "accessing Facebook without permission". There is a federal law against unauthorized access of computer networks, and there was a failed attempt to construe violation of a TOS as "unauthorized access" – it isn't. But accessing Facebook necessarily involves copying (that's how computers work), and there is no "fair use" defense whereby everybody has a fair use right to access Facebook. Theoretically you could be sued for copyright infringement, for accessing Facebook's intellectual property without permission. Also, Facebook can rescind your permission to access their content (see this case), and once you have been banned, it is a crime to further access their network. This assumes that there is no overriding limit on contracts that would nullify a no-quoting condition. There is no such limit on contracts in the US, so such a contract would be enforceable. There is also nothing illegal (unenforceable) about a TOS which prohibits automated methods of access. | In the United States, you almost certainly do. The most on-point case is Castle Rock Entertainment Inc. v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998). That was a case dealing with Seinfeld, where a publisher printed and sold The Seinfeld Aptitude Test, a book of Seinfeld trivia. The publisher argued that the questions and answers were simply unprotected facts about the show, not copyrightable expression, but the court concluded that the facts were merely restatements of the expressive works of the show's creators. Although the book was in some senses transformative, the court found that the transformation was "slight to non-existent": [T]he fact that The SAT so minimally alters Seinfeld's original expression in this case is further evidence of The SAT's lack of transformative purpose. To be sure, the act of testing trivia about a creative work, in question and answer form, involves some creative expression... However, the work as a whole, drawn directly from the Seinfeld episodes without substantial alteration, is far less transformative than other works we have held not to constitute fair use. A major part of the problem in that case was that the facts suggested that the publisher was not looking to create an educational or critical work revolving around Seinfeld, but rather to provide Seinfeldesque entertainment to Seinfeld fans. There is some discussion in Castle Rock suggesting that certain behind-the-scenes facts might change the analysis, but from what you're saying, it seems doubtful that you'd have a different outcome. | Unfortunately, the "but everyone does that" (BEDT) argument doesn't hold water as evidenced by prosecutions of looters. Would uploading this video be a copyright infringement? It would be hard to answer this part of the question without knowing where and from whom the clips had come from. If the clips came from a company like ESPN or a YouTuber that doesn't give you permission to be able to use their clips then yes this might be a copyright infringement. If you use video/clips that are labeled as creative commons then nt it wouldn't be an infringement. YouTube has a feature for this. Would my actions be fair use? First, we'll need to understand what fair-use is. Fair use is the ability to use copyright material under certain circumstances without permission. To best determine if using copyright-protected material in your work you should weigh it against the four factors of fair use. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; The effect of the use upon the potential market for or value of the copyrighted work. More information about fair-use here Youtube outlines their fair use guidelines here | Recipe books can be, and often are, protected by copyright. If the individual recipes are by others, this would constitute a collective work or compilation. See this recent answer for more on the rights protected for a collective work. The selection of which recipes to include would be a creative element, protected by copyright, and could not be copied or closely imitated without permission. However, division into groups by type of dish would be a "natural and obvious" arrangement, and not protected. So would alphabetical or chronological arrangement within a group, or over all. A "non-obvious" order of recipes would however be a protectable element. An individual recipe may be protected by copyright, but this protects less than one might think. Copyright does not protect facts or methods. This means that the list of ingredients is not protected, nor is the general list of steps of preparation. Only the exact wording of the recipe will be protected. Creating a new collection of recipes based on several different previously published collections of recipes (whether from the web, books, magazines, or other media) and making one's own selections of which ones to include that is significantly different from any of the previous collections would not violate the collection copyrights of any of the previous collections. If the actual recipes were rewritten so that any creative expression from the originals was not copied, then it seems that no copyright infringement has occurred. Most recipes, after all, are not fully original but are modified from older ones. There is no set figure for how many recipes could be copied from a given source before this becomes infringement. That would be, if a suit was field, a matter for the judgement of the count as to whether the new book was "based on" the alleged source. The more the list in the new work resembles a particular source, the more like a derivative work it seems and the more likely that it would be held to be an infringement. One could always ask for a license from the older source, to avoid any risk of suit, but it might not be available or the copyright holder might demand an excessive fee. Asking for a license risks drawing attention to the new work, as well, and might cause a holder to file suit who otherwise would not. | 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. |
Failing to mention when questioned something you later rely on in court If you are arrested in the UK, you'll hear that your rights include a rider inserted by the 1994 Criminal Justice and Public Order Act, after "you do not have to say anything": But, it may harm your defence if you do not mention when questioned something which you later rely on in court. In common with, I think, many British laymen, I have never understood the justification for this change, and have only ever seen it as vaguely threatening and a non-specific erosion of civil liberties. At the same time, I'm not really sure what specific sort of abuse I have to fear from it. Can anyone provide me with understandable, concrete examples of Why (if at all) I should be thankful that this clause exists? i.e., What kind of criminal act might a criminal get away with if this rider weren't there? What I have to fear? i.e., (a) What's the worst that might happen to a distrusting but innocent person who is wrongfully arrested and decides to say nothing? (b) How might the negative consequences have been avoided by saying something? (c) What additional risks are entailed in opening one's mouth in this situation, and how can they be minimized? EDIT: having read Nate's interpretation and Dawn's comments, I can re-frame the question more specifically. Either A: there was a simultaneous change in the way a suspect's silence could be used or interpreted in an English/Welsh court (away from the US model in which prosecutors cannot even draw attention to it), and the change in wording reflects this erosion of civil liberties; or B: both before and after the Criminal Justice Act, silence could always harm your defense, and the change in wording is an entirely benevolent attempt to warn people of this fact. Can anyone tell me which is the case? | I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this. | In a deposition, attorneys are supposed to keep their objections short and refrain from making an objection that indicates to the witness how he should answer. A question might be objectionable because it lacks foundation, because it is compound, because it calls for speculation, etc. Example 2, for instance, could be said to assume that Ms. Redacted was involved, and I might not want my client to discuss how he would act in that situation. Some attorneys in that situation might say, "Objection, assumes that Ms. Redacted had anything to do with this, which you haven't proved, and it's impossible to say what would have happened under circumstances that never happened." This gives my client a pretty clear signal that he ought to make clear that Ms. Redacted wasn't around, and that he should try to avoid getting pinned down on any questions about what he would have done if she had been. This practice -- known as "a speaking objection" -- can be used to signal to the witness how best to answer, and it leads to huge fights in a deposition. To avoid those fights, courts have developed a practice of requiring lawyers to simply "object to the form," rather than coaching the witness. That puts the objection on the record so it isn't waived, and if it's truly problematic, the parties have an opportunity to explain in greater detail after the deposition is concluded. | There will be a local rule regarding what police have to do with a person in custody. Here are the rules for Seattle. The main relevant rule is that they must take reasonable steps to ensure the safety of the detainee. They must use seat belts, unless the vehicle does not have seat belts in the detainee area. Additionally, they are not to respond to routine calls while transporting a detainee, but they may may respond to a threat to life safety. Typically, high speed response indicates a threat and not a noisy dog complaint. There is no obligation to refrain from responding, nor is there a requirement to release detainees. I don't think there is a clear and bright line: it comes down to what an officer would (in light of department instructions) judge to be reasonable. The officer may be wrong and the department may be wrong in what is legally "reasonable", and this could come out as a result of lawsuits and Dept. of Justice investigations. You can file a complaint with the Civil Rights division of the DoJ, see here. | Law The origin of the phrase is from the Supreme Court of the United States in the case Schenck v. United States, 249 U.S. 47 (1919). It specifically rules on the limitation of freedom of speech (first amendment): The original ruling is this: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. As pointed out by @phoog, this does not saying anything about the lawfullness of shouting "fire", it says that if your speech creates a clear and present danger, the first amendment will not protect you, even if the danger does not result in actual harm. Commentary If these instances are correct then it would seem clear that Freedom of Speech is being honored as it's the result of speech, not the speech itself, that could be an offense. You seem to think that it should be illegal, but only if it results in a panic that endangers people. If people ignore you, you think it should be protected by your first amendment rights. That's not how the law works. The law tries, among other things. To establish norms for human behaviour. For example, you will be punished for driving an automobile while intoxicated, even of this does not result in you running over somebody. In the words of the supreme court: If your actions "are of such a nature as to create a clear and present danger", the congress has the right to prevent you from doing so, despite the first amendment. | No Besides this being clearly unworkable, the requirements for the state providing public defense attorneys include being in need (you will need to provide an affadavit or similar to the effect) and when the defendant is at risk of significant time of confinement. The 5 to 15 minutes of the traffic or Terry stop are not considered significant. Nor are the processing times of arresting you and taking you in. Trying to make the officer provide you with an attorney (or declaring you aren't doing anything without one) before complying with their orders may well result in your incarceration and subsequent assignment of a public defender. | If someone testifying before congress refuses to respond to appropriate questions (questions within the scope of the congressional inquiry), that person can be cited for contempt of Congress. One way to avoid this is if the witness can invoke the Fifth Amendment privilege against self-incrimination. That says that a person may not be compelled to be a witness against himself (or herself) in a criminal case, and has been interpreted to mean that if testimony might in future be used against the witness in a criminal case, it cannot be required, even if the current occasion is not a criminal case. However, if a person has been granted immunity in a particular matter, no testimony can be used against the person in a criminal case on that matter, and so there is no Fifth Amendment privilege not to testify on that matter. This applies to testimony before a court as well as before Congress. The grant of immunity must be at least as comprehensive as the refusal to testify would have been, or the privilege remains. Therefore, if a person has been granted immunity on a subject, that person cannot refuse to testify before Congress by invoking the Fifth Amendment. If the person does refuse, s/he can be cited for contempt of Congress. However, the person can raise a claim that the inquiry was not a proper one, for example because the subject was not a proper one fo Congressional inquiry, or that the Committee was not properly authorized. If the court upholds such a claim, the person will not be convicted of contempt. Also, while Congress can issue a citation, the Justice Department is not required to prosecute the person, and may choose to let the issue drop. Or the court might not convict on some other ground. And of course Congress (or one house of it) has to vote to issue the citation, which it might decide not to do, for political reasons, or indeed for any reason at all. So a grant of immunity alone is not enough to say that testimony will be compelled, but it is a significant step towards such compulsion. Note that under Murphy v. Waterfront Comm'n, 378 U. S. 52 (1964), a state grant of immunity also bars Federal use of the compelled testimony or its fruits, and under Kastigar v. United States, 406 U.S. 441 (1972) a Federal grant of immunity bars state use of the compelled testimony or its fruits. See also This Justia essay on "the Power to Compel Testimony" which covers the whole subject with multiple case citations. | Silence is not cause. However, this may not prevent a search. The officer does not need to tell you that he has probable cause, he must simply have it in order to conduct a search. If he obtained the probable cause before he pulled you over (this is likely), then he will order you out of the car and search over your vociferous (and silent?) objections. If the officer does not have probable cause, searches anyway, and can't come up with a convincing one in time for the court date, then yes you have a claim. But remember, just because the officer didn't inform you of the cause doesn't mean it didn't exist. Always consult an attorney before any legal action. | Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent. |
Can I sell a figurine of my own design, despite it being a game character? I am making a Deku scrub figurine from The Legend of Zelda series to 3d print. I decided that I could sell these figurines on Etsy. Is there any legal requirements for the UK where I have to say something or I cannot sell this at all? Thank you from the UK, Domford | A figurine, or other artwork, that is clearly based on the published images, or on the published description, of a fictional character in a copyrighted work would be a derivative work. To publish, display, sell, or distribute such a work without permission would be copyright infringement, and the copyright holder could sue for damages. Whether something is a derivative work is a question of fact, and the details can matter. In general, the more vague and generic the fictional description, and the more original elements not derived from the fiction are included in the work, the less likely the new work is to be held to be derivative. But any significant element clearly taken from the previous work may be enough to make it derivative. | The "Crabs" game can be legal if it is seen as a form of parody. That is one of the forms of "fair use" that allows copying (within limits). This is to allow the use of limited amounts of copying for critical or "mocking" pieces, which are considered a form of free speech. Two other issues come into play under "fair use." The first is whether or not this is "commercial" (yes) or non-commercial (e.g educational) use. That is mildly negative for "Crabs" but by no means dispositive. The second is the likely market impact, whether the new use tends to compete with the old use in its "home" market, or whether it is likely to open a new market of a very different, perhaps "opposite" audience that might later buy the original as a "crossover." The "Crabs" game seems to address the "green" or at least "pro animal" (PETA) market. If the defendant can show that the "Cards" market addresses e..g., your "inner Nazi," making it "opposite," that would be ideal. It would be less convincing if "Cards" were addressing e.g. human rights, because that might be seen to overlap with the green market in terms of social conscience. | All of your works would be considered to be a derivative work. This is because your work, is based on the work of someone else's. A good test for this to see if something is a derivative work is to see whether the new work can effectively exist without the original. Most copyright laws worldwide are similar, thanks to the Berne Convention for copyrighted works. Since derivative works are normally a right that is exclusive to the copyright holder, you can't make such works without permission (generally through a license or expiry of copyright). So now, let's take a look: The Mona Lisa was made hundreds of years ago. It's definitely in the public domain. You're in no breach of copyright laws here. Yes, of course. Microsoft retains copyright on their icons, and possibly trademarks as well. However, they may have trademark guidance that allows you to use their icons - as long as you follow it. Likely the same as microsoft - you can assume it's similar for most large companies. Code is copyrighted as a literary work - the layout and visual aspect is copyrighted as an artistic work. That artist retains copyright, unless you obtain the work with a license, or the copyright is expired. If you create a derivative work, you infringe on their rights. | Yes, its illegal Sega owns the game - they can do what they like with it - including nothing. You can't. | The details of this specific matter are not clear because it appears that Mane6 relented in response to a cease and desist letter, rather than be dragged through court. Since we are not privy to the letter from Hasbro, the best we can do is guess based on the degrees of freedom that exist under the law. The claim that this game was a "parody" is an affirmative defense that Mane6 would have to raise in response to a copyright infringement claim (we don't know if there were also trademark infringement claims in the letter). Then the jury would look at the arguments of the two sides to determine whether this was really "fair use", performing the "balancing act" to see how much of the original work was copied, how transformative the derived work is, what the effect on market would be. The lines drawn for making these judgments are not bright. A quick scan of a successor product Them's Fightin' Herds suggest that someone thought the artwork was too substantially similar to the Hasbro product, that is, the fighting pony version was judged to not be transformative enough. Since it didn't go to court, we'll never know. | IF part of your code and data is non-open-source, you can't release this software under the MIT license. However, from what I know, CS:GO uses real-life weapons, and their names aren't protected by copyright. Weapon stats aren't copyrightable either. With skin names, you should be safe as well, since there isn't enough (or any) lore around them to establish them as literary works. However, if you are using any in-game descriptions or images, they are copyrighted content and can't be legally copied without permission from Valve. Which might be easy to obtain by writing them. | It's possible that CAD has a separate licence from the authors of ABC that allows them to produce a closed source copy. If not, they have no right to distribute CAD. However two wrongs don't make a right, and so you don't get to violate the copyright of CAD.* Unfortunately, unless you are one of the authors of ABC, you have no standing to sue the authors of CAD. You can only notify the authors of ABC and hope they do. If the authors of ABC don't have the resources to pursue the matter, you may be out of luck. That's one of the reasons the FSF gets copyright assignments for their projects. * It turns out that this is a much more debateable issue than I first thought. Some courts have held that an unauthorized derivative work is not copyrightable. | The rule you are alluding to with respect to a television set is called the "first sale doctrine" which basically prohibits copyright and trademark owners from limiting the ability of a buyer of a good (like a CD or authorized logo T-Shirt) protected by copyright or trademark, from limiting further sales of that good (or the manner in which the good is used by its new owner) after a first retail sale of the good with copyright or trademark protections. This doctrine was derived from an old common law rule that invalidated "restraints on alienation" of property other than intellectual property on public policy grounds, and like the "restrain on alienation" rule for tangible property, the first sale doctrine that applies to intellectual property was also (at least originally) a court created common law rule. But Minecraft isn't, conceptually, a good. It is a continuing service provided over the Internet, and firms that provide continuing services on a licensed basis, as Minecraft does, can impose terms of service (a.k.a. an "end user license agreement" a.k.a. EULA) which must be complied with in order for users to be allowed to continue to utilize the service. So, its prohibition on exchanges of things of real world value for things of game value, except as the terms of service authorize, is permitted. A user of Minecraft is more analogous legally to someone skating at an ice rink than to someone who buys a CD or book. If you buy a ticket to skate at an ice rink, the people granting you the license to use the ice rink have the right to set rules governing how you utilize that service, and to terminate your license if you don't follow the rules (e.g. by skating in the wrong direction at the wrong time). Indeed, a ticket to an event is also known in legal parlance as a form of "license" just like a EULA, and licenses to use real property are the origin of the body of law that now governs the licensing of intangible intellectual property. A Minecraft license isn't something that you own (even if you have a license of unlimited duration), it is a qualified and limited right to use something that someone else owns, that you aren't allowed to purchase, but you are allowed to use on the owner's terms. How can they enforce servers to follow that rule if the server's are not using Mojang's proprietary software. The EULA or TOS obligation in the Minecraft business model is enforceable because Minecraft isn't in the business of selling proprietary software, even though it does do that. Minecraft is in the business of licensing access to data and online resources. The EULA regulates your access to the data on servers, and the computing power of those servers, not your ownership of an app which facilitates your use of the licensed services. And, while there are various contractual remedies for violating a EULA, the most basic one is a self-help remedy: to cut you off from your ability to use the service if you violate the owner's rules. Indeed, at least heuristically, the easiest way to distinguish an intellectual property good, which is subject to the first sale doctrine, from an intellectual property service, which can be licensed pursuant to a EULA, is whether, as a practical matter, the firm distributing the intellectual property has a practical ability to deny you service going forward without resort to the courts. If the owner of the intellectual property has no practical ability to do that, the intellectual property being distributed will probably be classified as a good and be subject to the first sale doctrine. But, if the owner of the intellectual property has the practical ability to cut you off from the intellectual property being distributed without resort to the courts, the intellectual property being distributed will probably be classified as a service, which is not subject to the first sale doctrine and may be licensed. |
Is it legal to download subtitles from youtube videos youtube videos have different types of subtitles, there is manual subtitles where the author writes his video's captions and uploads them, and there is the auto generated subtitles by youtube. these subtitles can be downloaded in a geeky way, Question: is it legal to download and use these subtitles whether they're auto generated or written by the author himself? | On the face of it, transcripts are derivative work covered by copyright (even if automagically generated). You are allowed to use them if the use is fair use or if you comply with YouTube's terms of service. | "Personal use only" does not excuse copyright infringement under US law. The uploader does not hold copyright, and neither gives nor denies permission to copy his creation. The law does not require a copyright holder to deny permission, it requires the user to actually obtain permission. So no matter how you slice it (even as fair use) it is infringement for you to copy that video. | This is relatively uncharted legal territory, so until multiple cases establish some sort of precedent, we can only guess. I know of no legal requirement that a Browser or User has to submit cookies or referrer data or other meta-information accurately. In that regard, a user is unlikely to be prosecuted just for submitting HTTP headers. It is likely closely related to Free Speech issues. The DMCA spells out that it is illegal to circumvent copyright protection measures. While this law is typically used to make it illegal to copy DVDs, video-games or streaming movies, it is possible that the "3-free articles" policy could be interpreted as a copyright protection mechanism, and defeating it by changing HTTP headers is a circumvention. A good summary is here. A specific site's TOS (Terms of Service) probably contains language that spells out it is a violation to use the site in a manner other than as it is intended. This is a typical anti-hacking, anti-screen-scraping provision. Altering a browser session to circumvent their services is probably a violation of the license to access the site, and may open a user to a civil lawsuit for damages or even criminal hacking charges (the details of which are different state-to-state) | As stated in the answer to What is considered "public" in the context of taking videos or audio recordings?; if either of the participants is in Australia than unless all parties have given consent then the recording is illegal. Notwithstanding its legality, property in the recording vests in the person who made it. There is no law against him keeping it. There is no law against him publishing it unless the material contained is offensive, hate speech or defamatory (see Customer feedback gathering in Australia). | The takedown action is a little sketchy. The law regarding takedown notices and host liability is here. The notice includes "Identification of the copyrighted work claimed to have been infringed", a "signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed", and a statement that "the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law". These things are present in the notice, for which reason the items were taken down. The complaint states that The clear purpose of this source code is to (i) circumvent the technological protection measures used by authorized streaming services such as YouTube, and (ii) reproduce and distribute music videos and sound recordings owned by our member companies without authorization for such use. We note that the source code is described on GitHub as “a command-line program to download videos from YouTube.com and a few more sites.” and the source code expressly suggests its use to copy and/or distribute the following copyrighted works owned by our member companies: Icona Pop – I Love It (feat. Charli XCX) [Official Video], owned by Warner Music Group Justin Timberlake – Tunnel Vision (Explicit), owned by Sony Music Group Taylor Swift – Shake it Off, owned/exclusively licensed by Universal Music Group Complainants are "confused" about actual infringement (which is prohibited by copyright law), and creating a method for infringing copyright. Under DMCA and US copyright law, copying is infringing, programming is not infringing. The complaint does not clearly allege unauthorized copying of another person's intellectual property, and their complaint is based on the theory that certain programming actions constitute copyright infringement. I don't actually think they are confused, I think they are testing the boundaries. Github has no reasonable options but to comply; the authors have the option of filing a counter-notice; then RIAA has the option of claiming that they have filed a copyright infringement lawsuit. If they do, the material remains taken down and the courts sort it out if a lawsuit is actually filed. There is minimal burden on the complainant to reign-in over-zealous takedown notice practices: Lenz v. Universal Music finds that complainants must give good faith consideration to a fair use defense. 17 USC 1201(a)(1)(A) states that No person shall circumvent a technological measure that effectively controls access to a work protected under this title. Let's assume that the removed material does circumvent a technological measure protecting a work. This is a separate offense in Title 17. 17 USC 501(a) defines infringement of copyright, saying Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author Production of an anti-circumvention technology is not included in those sections: on a plain reading of the law, this is not infringement. To summarize the legal dance at issue: RIAA has taken the first legal step in alleging infringement, and Github has taken the material down because Github does not get to decide what the courts would conclude. Let's assume the authors file a counter-notice stating that there is no infringement; then, equally, let's assume that RIAA states that they files a lawsuit. Github will leave the material down. Let's also assume that RIAA actually files suit. Under the prior assumption that the material violates 17 USC 1201(a)(1)(A) which seems likely, the authors could be slapped for being in violation: but they would not have been in violation of §106-122. What recourse would the authors have for RIAA's misuse of the term "infringe", and against whom? Nothing against Github: the service provider does not get to decide the merits of the case. Perhaps RIAA. From Lenz supra, If an entity abuses the DMCA, it may be subject to liability under § 512(f). That section provides: “Any person who knowingly materially misrepresents under this section—(1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages․” Id. § 512(f). Subsection (1) generally applies to copyright holders and subsection (2) generally applies to users. Only subsection (1) is at issue here. The court said that We must next determine if a genuine issue of material fact exists as to whether Universal knowingly misrepresented that it had formed a good faith belief the video did not constitute fair use. This inquiry lies not in whether a court would adjudge the video as a fair use, but whether Universal formed a good faith belief that it was not. Contrary to the district court's holding, Lenz may proceed under an actual knowledge theory, but not under a willful blindness theory. Perhaps the authors can prove actual knowledge. The Lenz reasoning on this point (§IV C) is rather contorted. | Yes, you may The layout of the board and its appearance are not protected by copyright, because they are not expressions or any other type of copyrightable content. Even if they were (say if some protested art was displayed on the board) you are displaying this for instructional purposes, and not harming any market for the board, so fair use is likely to apply (in the U.S.). The device could be protected by patent, but you are not copying or imitating the board, nor showing anyone how to do so, so that would not apply. You are not selling or advertising the board, nor knock-offs of it, so trademark protection would not apply, even if a protected trademark is visible on th board. Just in case, be sure to make clear that your video is not authorized or endorsed by the maker of the board. | This seems to be a mix of question about law and a meta-question about this site, but I'll treat it as an on-topic question about law. The author of a question, or answer, owns the copyright to their contributions, and they can re-publish to their heart's content. Any user who posts here grants a license to SE and other users to use content posted here, so I don't have to ask you permission to quote you. As part of the permission granted by SE to use this website, you have agreed to "follow the rules" set by SE. There are many rules, some spelled out more clearly that others. For example, if you post a question, you indirectly agreed that your content can be upvoted or down-voted. Certain content can be "closed" and deleted, when the content is deemed to violate the rules in particular ways (is spam, porn, abuse, or judged to be poor-quality). Judgment (on different matters) can be rendered by community managers, moderators, or other users. The agreement is here, see especially here. If we take the post that you linked to, it is quite possible that it was deleted because it is not a general legal question, in violation of the acceptable use policy. If you want a historical analysis of your particular case, it should be asked on Law Meta. | It would seem that your song is a derived work. You took the original work and found words that sound the same. If the original work had used different words, your work would have ended up differently. So you have a derived work. Same as making a translation; if the original was different, then the translation would be different, so the translation is a derived work. I was asked "How is this not straight up infringement". But it is. Not only copying is an exclusive right of the copyright holder, but also the creation of derivative works. |
Is local government a private entity? Following up on this question, where it turns out police dont have any real power citizens dont have, isn't local government just a utilities monopoly? Property taxes are enforced with utility shutoffs, so it isnt even a true tax. It's just a utilities charge. Furthermore, there are powers the federal government has, that no locals have. For example, the federal government can perform AWG which is necessary for government to exist. Since local government does not have AWG- and must do everything through courts like any private entity does- is local government actually a private entity? And even if it can make tax levies without utility shutoffs, isnt the government still a giant HOA? | No. Private entities can freely be created by citizens; local governments cannot be created by citizens but only by higher government. Nevada citizens can petition (ask) the county to do so. That means they still can take the initiative, but the decision isn't theirs. | Assuming that the HOA duly adopted the rule that requires this disclosure, probably yes. An HOA is not subject to the privacy law or constitutional restrictions of a governmental entity, an HOA is the de facto owner of the common areas of the HOA, and in general, a private property owner can insist on getting any information the private property owner wishes as a condition of using a private property owner's property. Generally speaking, however, the declarations of a condominium set forth the process by which rules like this one can be adopted and those rules have to be followed for the rule to be valid. | In Connecticut, this is covered by the firefighter's rule. Police and fire personnel entering a property as part of their official duties are considered licensees, which limits the duties of the landowner. The rules are as follows: You can't intentionally hurt or lay a trap for the licensee. If you know or should know the licensee is there, you need to exercise due care with them. You don't have to worry about obvious hazards (but keep in mind that it's harder to see stuff at night). If you're doing something dangerous, you need to watch out for them. If you know about a hidden hazard, you must warn them. I'm not sure how in-depth you need to go with the warnings; various things I find suggest the duty to warn might only be there when you know or should know the licensee is present, but signs are a good idea regardless. On the other hand, if you do need to warn them, you might need to mention the specific locations of the pits you actually know about. However, there's no duty at all to proactively look for possible hazards. This rule originated as a rule for professional firefighters responding to a negligently-started fire: the idea is that professional firefighters sign up to do a dangerous job, and letting them sue for hazards inherent in their job (they aren't called without a fire) is a bad idea. Also, since they cannot be denied entry, go in places not open to the public, and can arrive at any hour, needing to keep the property safe for them is an unreasonable burden. Of course, there's an exception if a law is passed to protect their safety, because statutes override common law. The rule has since been extended in some states to police, and to situations besides the very problem they were called for. Other states have abolished it. In any event, this is for civil liability only: this is when cops can sue for injuries caused to them. | It isn't clear that the example you give is illegal police action, but let's assume that it is for the sake of this question, since it doesn't affect the analysis. If possession is not compelled, then it is voluntary. | Shouldn't the village compensate me or him for allowing the sale with wrong measurement or for changing the rule? No. It is very common for local governments to make changes to zoning ordinances, building codes, etc, that have the effect of restricting the way that property can be used. In most cases this is not considered to be a "taking" for the purposes of the Fifth Amendment, even if it reduces the value of the property, and the government does not have to compensate the property owner. See for instance Agins v. City of Tiburon, 447 U.S. 255 (1980). Roughly speaking, the Takings Clause only applies if the regulations are so restrictive that the land cannot really be used at all. Here you are still perfectly able to use the existing house, and it sounds like you can even build an addition - you just can't build in the exact way that you want. You'll either need to design your addition to comply with the current setback rules, or see if you can get the village to approve a variance. | I'll assume a real question here and not one about a fan film on YouTube. Take the trash from a trash deposit container outside my neighbor's house, without asking permission? All depends on the locality; and sometimes the law is not settled, either. Some cities have passed laws that deem trash to be city's property as soon as it is placed in a city-supplied trash bin, because the city (or a private contractor) hauls to and owns the landfill. Other cities claim legal ownership of recyclables when placed on the curb, for the obvious reason that they are worth money. The law can be not settled if objects are in alleys and not in trash bins, or simply placed on the curb. For the sake of discussion, there are numerous examples of cities looking the other way with scavengers and pickers; it all depends on the location and the enforcement. (And, there are examples of the police being able to legally pull evidence from trash; but that's not the question here.) Go to the landfill, load some trash into my truck, then drive away? Think about it: you're obviously not going to be able to do this in a location with a managed landfill with employees that check you in and take your tipping fee. If it's a private trash contractor, it's private property; for a city, it's probably against the contract you signed when you paid to dump and probably against city law to salvage from the landfill, for liability reasons. (That doesn't mean the employees at the landfill can't salvage themselves; that's up to them.) But like anything, at an unmanaged landfill in a rural area, you could probably get away with it. | No. Because these laws are controlled by the states, there could theoretically be 50 different answers, but every state I've looked at so far (Arizona, Florida, Massachusetts, New Hampshire, Wisconsin) forbids using power of attorney to cast votes in a public election. In many states, a POA may not even request an absentee ballot for a voter. The general principle is that the POA can undertake any legal act the agent could undertake, except those "so peculiarly personal that their performance cannot be delegated." States generally treat voting as peculiarly personal. | This happened recently in Washington state, when the state Supreme Court ordered the state government to comply with a constitutional funding mandate (McCleary v. Washington, 2012). The state did not comply for 6 years and was fined ($100,000 per day) for 3 years. I don't recall that the state paid a penny, and the courts did not demand payment of fines for that period. Public opinion did not have any obvious effect, but you could take this to Politics SE to get a lot of opinions as to whether public opinion mattered. The federal government can't get involved, unless they (the federal government) first make a federal issue out of it, perhaps because of some law suit. Power of enforcement is essential non-existent, given a sufficiently non-cooperative state government. I should point out that the court's order was a bit vague, that is, it was not "release Smith from custody instantly", it required the government to act to the satisfaction of the court. |
How to verify a US based company? I have been recently hired by a US based company to code on their platform. Living in a different country, how can I verify that the company is legit and how do I find any information regarding the company. Like in my country the government has a portal where I can check the registration details of the company including the registered office address, board members, paid up capital etc. I have requested the registration information of the company and they have provided me with the registration file number. But I cant find an official site, where I can cross verify them. Any help would be appreciated. | As was mentioned in a comment, in the United States, businesses are generally registered at the state level. The information collected, and the extent to which or manner in which the public has access to it, varies from state to state. There may still be states where that's a paper-only process, but I'd guess in most of them it's accessible online, at least for basic information. For example, in Michigan the Department of Licensing and Regulatory Affairs has a Business Entity Search tool. If a business deals directly with consumers, it may be a member of the Better Business Bureau. Even if it isn't, but consumers have complained about it, the BBB will make public the information it has about the purported business. If a company is publicly traded (that is, it's corporation that issues stock, and the stock is traded on a stock exchange), it is required by law to be registered with the Securities and Exchange Commission. The SEC's EDGAR tool will display the company's filings, which should include annual and quarterly reports. If the company is or wants to be a government contractor, it generally needs to register with the General Services Administration, and certain information about successfully registered entities is publicly viewable in that system. (Conversely, the same system also lists "Excluded Parties" who are prohibited or partially restricted from doing business with the government.) Depending on what the business does, it may also be subject to registration with and regulation by additional state or federal agencies. For a full picture, however, unless you're dealing with the obvious agent of a Fortune 500 company, you'll probably want to get information from a private credit-check service as well; for example, as also mentioned in a comment, Dun & Bradstreet for the business itself, or for a really small business a personal credit report on each of the owners and officers. | 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. | It's from a company called MarkMonitor that does trademark protection for clients - specifically around internet activities and that includes domain cybersquatting - which is illegal in the US under the ACPA, and of course that's what you were/are doing. So it could be a legitimate request as these things go. But that's not the whole story - the domain in the e-mail you posted is "walmartt.com" which is not only currently owned by Walmart Inc. but always has been, in fact the current Registrar of record is the aforementioned MarkMonitor. So either this isn't a legitimate request because you don't own "walmartt.com" and therefore this is spam or phishing (in which case feel free to delete it and move on with your life), granted that would be a pretty impressive bit of phishing since you are currently cybersquatting some Walmart-typo domains. Or you're just telling porkies all the way through your question for reasons of your own. | You will have to pay import toll and taxes. There is no way around that unless you get only tiny deliveries, and that would be tax evasion. Atop that, make sure your wares are declared properly and are not regarded as counterfeit or not importable. Fashion products might require to follow some special rules on ingredients that are allowable. You can get the information you need at your customs office or at the customs office website | You can't You agreed: by submitting Materials in any form to the Company, in addition to other provisions of the Terms, you automatically grant Company a royalty-free, world-wide, irrevocable, non-exclusive, and assignable right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, transmit, distribute, publicly display and publicly perform such Materials for the purpose of displaying and promoting the Materials on any website operated by, and in any related marketing materials produced by, the Company and its affiliates. They can keep and use your data forever and give it to whoever they want. The clause you quote doesn't alter that. All it says is that once a year, if you ask, they will tell you what information they shared and with whom. If they feel like it they will tell you how to get the information deleted. | the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply & demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled. | Companies have a registry of their shareholders. Anyone with at least one share registered in their name is a shareholder of record. However, the vast majority of people who consider themselves "shareholders" aren't actually registered owners of a stock. Instead, almost all public stock in the US is held "in street name." That means that the stock is formally held in the name of a brokerage. What an individual has is "beneficial ownership:" the brokerage passes dividends on to the beneficial owner, will vote how the beneficial owner tells it to vote, and requires agreement from the beneficial owner before it can sell the stock. To make stuff even more complicated, the broker itself generally holds the stock in street name. Almost all public stock in the US is really owned by the Depository Trust Corporation in the name of Cede and Company (a general partnership of a few DTC officers). The reason public stock is mostly held in street name is efficiency. Transferring the legal owner of a piece of stock is a nontrivial process; until recently, it involved physically shipping stock certificates to the new owner. Even now that stock ownership can typically be transferred electronically, it's much easier to tell Cede & Co. "the new beneficial owner is this person." Because beneficial ownership is just a contract, you can skip all the formalities of updating the company's official register of shareholders. | Websites are not ships that can choose a flag of convenience to govern which country's laws govern them. Generally speaking an analysis of which jurisdiction's law applies (which is strictly speaking a "choice of law" question as much as it is a jurisdiction question) isn't undertaken on a website by website, or business by business basis. Instead, jurisdiction and choice of law are evaluated on a claim by claim basis. The owners of a website may be subject to some claims in India, to some in Bhutan, and to others in the United States, depending upon the claim. Without knowing who is trying to sue for what, you can't know. Generally speaking, a business that operates in multiple jurisdictions, like a website, will be subject to the laws of all of the jurisdictions in which it does business in regard to claims with a connection to those jurisdictions. Of course, as a practical matter, only claims that can be enforced against the owners of the website are relevant, which usually means that only claims brought where the owners reside or own assets are relevant. If the website owners own property or have amounts payable to them in India, there is a very good chance that India can, as a practical matter, assert jurisdiction over them. And, it is likely, as a practical matter, that Saudi Arabia or China would not be able to assert jurisdiction over them in a meaningful way. The fact that businesses can be conducted through legal entities further complicates the analysis. But, at any rate, the place to begin is to realize that the question "Under which country's jurisdiction does a website fall?" is basically a category error. You need to ask "Under which country's jurisdiction does a website fall when it is sued or prosecuted for X kind of matter by someone who lives in Y?" So, really, this one question is actually dozens or hundreds of questions that each have to be analyzed individually. |
Can a judge suggest to the jury that a witness is lying? I was recently party to a preliminary hearing in a criminal case in which a 911 call was played. The content of the 911 call was very beneficial to the defendant. During the hearing, the judge said something to the effect of, "It would be a question for the jury whether the caller was 'being honest.'" In other words, the judge was suggesting that the caller to the 911 was being disengenuous and deliberately conveying a false impression -- something that I think would never occur to most people because the call seemed completely genuine. Also, the caller would have had no motive to faking their mental state. I got the idea that the judge was looking for some angle to discredit the 911 call out of interest to see the defendant convicted. In any case, from the judge's remark I got the idea that he might say something like that during the trial, or give the jury an instruction designed to make them think the 911 caller was putting on an elaborate act. Is a judge allowed to do this? | It is the jury's job to evaluate the credibility of the witnesses, and it is the judge's job to inform them of that responsbility. It is not appropriate, however, for the judge to indicate to the jury what answer they should come to on those questions. In Quercia v. United States, 289 U.S. 466 (1933), the defendant in a drug case took the stand to deny the charges. Before the jury went to deliberate, the judge made the following observation: I am going to tell you what I think of the defendant's testimony. You may have noticed, Mr. Foreman and gentlemen, that he wiped his hands during his testimony. It is rather a curious thing, but that is almost always an indication of lying. Why it should be so we don't know, but that is the fact. I think that every single word that man said, except when he agreed with the Government's testimony, was a lie. The jury convicted, but the U.S. Supreme Court reversed, holding that the instruction was an error. It said that the judge has the right, generally speaking, to comment on the evidence, but that right is not unlimited, because juries are likely to be swayed by the judge's assessments, even if he instructs them to make their own decisions: The influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling. This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence should be so given as not to mislead, and especially that it should not be one-sided; that deductions and theories not warranted by the evidence should be studiously avoided. The comment you seem to be imagining is a closer call than this, but I think most judges would agree it would be inappropriate. At a preliminary hearing, though, where there is no jury, there is no real problem with the judge making that comment. If I were the defense attorney, I'd be glad he did, as it would help inform my decision about whether to pursue a jury trial or a bench trial. | An "inquisitorial" system is one where the Judge or Magistrate actively questions the accused and witnesses to attempt to determine the facts. The Judge may also determine, at least in part, what witnesses to call in what order. An "adversarial" system is one in which each side presents its case, and the judge acts as an umpire deciding on procedure, and possibly makes the final ruling (or directs a jury to do so) but is not actively involved in questioning witnesses or deciding what witnesses to call. I don't see anything which would prevent a common-law jurisdiction from establishing an "inquisitorial" system by statute except longstanding tradition, but as far as i know no such jurisdiction has ever had such a system in place for dealing with criminal matters. The informal procedures in some small claims courts do have judges more actively involved than in other courts. I think this is also true in some family courts as well. I think I have heard of some civil-law jurisdictions which use something like an adversary system, but i am not sure of that. Certainly a civil-law country could pass a law setting up such a system if it chose to. | The broader question is a bit tricky and has many dimensions. It is probably easiest to go over some of the ground rules. There are probably other particular issues that could come up, but those are the only ones that occurred to me at the moment. Caveats and Disclaimers Also, it is worth noting that the considerations that apply are different in criminal v. non-criminal trials, in the U.S. v. other countries, U.S. state courts v. federal courts, in jury trials v. bench trials, and in the civilian v. military justice systems ("A Few Good Men" is a quasi-criminal U.S. court-martial case under the military justice system without a true jury.) At least to start with, I will limit my answer to civilian criminal jury trials in the United Sates. At least in practice and interpretation, the United States has lower expectations of lawyers at trial than in many other common law countries. Prosecutors have higher duties to not be deceptive than criminal defense lawyers. There is a greater duty for defendants to disclose information that could be harmful to their case in civil cases (especially in state courts) than in criminal cases. The ethical duties of lawyers regarding candor in bench trials are more complicated because there are some facts that in a jury trial, a judge is allowed to know and consider when making rulings in the case, but a jury is not allowed to know. Military justice is its own thing with far less formal rules of procedure and deeply different basic assumptions than in trials in civilian courts. For example, in a military trial, the prosecutor, the defense lawyer, the defendants and the judges are all soldiers who owe heightened duties to the same government and the military mission, relative to participants in a trial in a civilian court, that can take priority over the duties a lawyer owes to his client, or duties of judges to respect due process. A prosecutor is not permitted to advance frivolous and groundless positions for any reason. Some Notable Rules Opening Arguments and Offers Of Proof You are not allowed in an opening argument to a jury in a civilian criminal trial, or in an offer of proof to a judge in support of the validity of questions you would like to ask, to state that you will present evidence later in the case that you do not believe in good faith that you will introduce. You are not required, however, to identify all evidence that you plan to introduce in your opening statement. But, if you say you will offer up evidence later in the case believing that you will introduce it, and then decide later on that you don't need to and want to offer up that evidence after all, you aren't required to do so. For example, in a case that I tried not so long ago, both sides had expert witnesses. The other side's expert witness testified first and we got him to say everything that we wanted our expert witness to say in cross-examination. We were also worried that our expert witness might say something that would hurt our case because he understood some complicated facts in the case better than the other side's expert witness who didn't realize that those facts were an issue. So, when it was my turn to present the expert witness (who was supposed to have bee the last witness in the case) that we'd said in opening arguments would testify for several hours, we told the court, "we planned on calling Mr. So and So as an expert witness, but have concluded that his testimony would be cumulative so we conclude our case now," after which the Court immediately moved on to closing arguments which we knew that we'd have to present right away, but the other side expected to have several more hours to think about while our last expert witness testified consistently with his previously disclosed expert witness report for a couple of hours. What the lawyer did in "A Few Good Men" (which was in substance an "offer of proof" to provide authority for him to ask certain questions) came close to the line of what is permissible in terms of saying that you will introduce evidence when you don't actually plan to do so, but probably didn't cross the line because he didn't say what they would testify to if called. This would be bad form, and it might undermine the lawyer's credibility with the judge not just in this case, but in the long run, but a lawyer could decide as this one did, that this downside was worth it. Statements About Lying Witnesses Neither the prosecution lawyer nor the defense lawyer is allowed to say that they know that a particular witness was lying. This is because this turns the lawyer into a witness and puts the lawyer's credibility at issue. This is also because a statement like that can be used to signal to the jury that the lawyer knows something based upon evidence that the jury didn't hear (perhaps because they weren't allowed to hear it) that they should consider when weighing credibility. Numerous felony convictions are overturned every year because a prosecutor told a jury that a witness was lying. These statements are prohibited without regard to whether they are true, false or debatable. Of course, a lawyer can say, "as you evaluate the credibility of the first witness you heard you should consider the fact that he will avoid a life in prison term and receive a $1,000,000 life insurance policy payout and that the first witness is blind and yet told you the exact color and texture of the sweater that the defendant was wearing even though the first witness doesn't claim to have ever touched that sweater." The lawyer simply isn't allowed to connect the dots and conclude for the jury that therefore, the first witness is lying. Arguments Based Upon False Inferences As a general rule, in a civilian criminal jury trial, a defense lawyer is allowed to ask questions in cross-examination and make arguments in closing arguments that are based upon inferences from the evidence that was presented that the defense attorney knows to be false, so long as the factual testimony presented is not known to be false. For example, the defense lawyer could argue in closing arguments, "the prosecution did not rule out the possibility that Fred Heinz was present at the murder scene, so they haven't ruled out the possibility that Fred Heinz rather than my client committed the murder," even if the defense lawyer happens to know that Fred Heinz was actually on vacation in another country at the time of the murder. Similarly, a defense lawyer could ask a witness on cross-examination, "Isn't it true that you hide the murder weapon at the requests of your boyfriend and didn't see my client at all that evening?", even if the defense lawyer knows that his client's girlfriend asked the witness to hide the murder weapon and not the witness's boyfriend. The witness of course, would simply answer "no, that isn't true.", but the defense lawyer's question would put the possibility into the heads of the jurors, possibly leading them astray. (The second example is a little more complicated than that, because the defense lawyer's question is only allowed if there is some foundation established in earlier evidence to show that the boyfriend asked the witness to hide the murder weapon. If not, the prosecutor could object to the question and the judge wouldn't allow the witness to answer it. Whether a defense lawyer can ethically ask a question knowing that it violates the rules of evidence hoping that the prosecution won't object to it and knowing that even if the question is overruled by the judge that it will give the jurors a hint about a possibility that is actually known by the defense lawyer to be false, is somewhat of a gray area.) Also, a lawyer is absolutely allowed to ask cross-examination questions not knowing what the answer will be, even though that is risky and usually considered to be bad trial practice, and a lawyer is allowed to ask questions that limit a witness to telling an incomplete story that sounds bad, even though the whole story, if told, would not sound so bad, and even if the lawyer knows that the other side won't get an opportunity to tell the whole story for some reason later on. For example, suppose that the lawyer asks a witness, "you just told the jury that you saw this fight happen?" to which he responds, "yes." "And, you just have normal vision don't you?" "Yes." "But, isn't it true that you were three miles away from the scene of the fight when it happened." "Yes. Now that sounds like it really discredits that witnesses testimony, even if the lawyer asking the question and the witness and the prosecutor and the judge all know that the witness saw the fight occur though binoculars from the top of the Empire State Building. Normally, this could get corrected with rebuttal testimony. But, suppose that the defense lawyer offering this cross-examination asked the questions in a dull voice like it was a tedious detail and noticed that the prosecutor had been distracted looking at texts on his phone while the defendant was cross-examining the witness and so didn't notice this line of questioning, and therefore was likely to say, "no further questions, your honor" when the judge asked him if he had any rebuttal testimony he'd like to offer from this witness. In that situation, the defense lawyer hasn't acted improperly in causing the jury to make a misleading inference from the testimony, and the defense lawyer is allowed in closing arguments to heavily emphasize that the key prosecution witness who says he saw the fight admits that he was three miles away when it happened, knowing that this argument is disingenuous. Ultimately, a defense lawyer's job is to get the best result possible for their client without violating any relevant ethical rules which are specifically and intentionally relaxed for them relative to other lawyers in some respects regarding advancing frivolous and groundless positions. A prosecutor, in contrast, has a duty to advance only claims that the prosecutor believes to be supported by probable cause, to not hide exculpatory evidence, and to seek justice rather than having a duty to try to convict and get a maximum sentence without regard to guilt or innocence (in principle even if not all prosecutors act this way). Testimony And Evidence Know To Be Intentionally False A lawyer is not permitted to let a witness or his client provide testimony to the court that he knows to be perjured. If his witness starts to commit perjury on the stand, the lawyer has to immediately stop the examination of that witness and discuss the problem with the judge. In many circumstances, the lawyer must correct a knowingly false statement that his witness has provided to the court even if he only learns that the statement was knowingly false after that witness is off the stand if the lawyer learns of this before the jury renders its verdict (or for that matter within the time allowed for post-trial motions). Gray areas come in when the lawyer doesn't know that the testimony is true or false, and knows that someone is under oath, but also knows that they aren't a very credible person and that the person sometimes lies in important situations, and indeed avoids knowing the truth. Similarly, gray areas come into play when the lawyer knows that the witness is likely to be mistaken in the testimony that is offered, but knows that the witness is sincerely doing his best to tell the truth on the stand as he understands it to be. Likewise, a lawyer is not allowed to introduce evidence that he knows to be doctored or forged (i.e. claiming that it is authentic), unless the lawyer explains in the course of introducing the evidence that it is a doctored or forged document and is offering it to show that somebody doctored or forged the document. And, if the lawyer later discovers that the document was doctored or forged before the jury renders its verdict (or within the time allowed for post-trial motions), the lawyer has to tell the court that this happened. Pre-Trial Disclosures While the prosecution has a duty to disclose all exculpatory evidence in its possession prior to a trial in a civilian criminal case (something called Brady disclosures), the defense's duty to disclose what evidence it will offer, or what evidence it knows exists, is extremely narrow. There are a couple of kinds of defense strategies (like an alibi defense or a self-defense defense or certain disputes regarding expert testimony) which the defense must disclose that it plans to use at trial, prior to the trial. But, the defense has much more latitude to call surprise witnesses and to introduce surprise evidence at trial than the prosecution does. | The answer to this question will be almost entirely informed by the why that you've asked us not to consider. If the prosecutor or judge is a witness, the defendant should be able to call them, but that also means they would have to withdraw from the case under either Rule 3.7 or Canon 3. If the defendant believes the prosecution is tainted by some improper motive, the defendant may raise that objection under Crim. R. 12, but he must do so pretrial. I can't think of any circumstances where the defendant could question the judge or prosecutor in the jury's presence. | One might be enough, 10,000 might not be enough In some cases, no eyewitnesses may be enough. The trier of fact (the jury if there is one, the judge if there isn’t) decides what weight to give to the evidence or any part of it (including the testimony of any given eyewitness) and decide if that is enough to meet the prosecution’s burden of beyond reasonable doubt on each of the elements to be proven. From the outset, however, you should understand that you are the sole judges of the facts. In respect of all disputes about matters of fact in this case, it will be you and not I who will have to resolve them. In part, that means that it is entirely up to you to decide what evidence is to be accepted and what evidence is to be rejected. For that reason you need to pay careful attention to each witness as their evidence is given. You should not only listen to what the witnesses say but also watch them as they give their evidence. How a witness presents to you and how he or she responds to questioning, especially in cross-examination, may assist you in deciding whether or not you accept what that witness was saying as truthful and reliable. You are entitled to accept part of what a witness says and reject other parts of the evidence. Recommended instruction to the jury from the NSW Criminal Trial Bench Book | Canada's local court systems and procedural rules vary, especially at the lowest level, by province. So, I'm just stating some general principals. General speaking legal arguments are limited to closing arguments of the parties after all of the evidence has been presented by both sides (because this limits legal arguments to those with evidentiary support rather than merely hypothetical arguments). Opening arguments are usually supposed to be limited to a recitation of what the facts in the case will show. Presentation of evidence and examination of witnesses is also not a time for this to be done. Some courts in some jurisdictions allow a defendant to make a "half-time motion" at the close of the prosecution's case, arguing that the prosecution has failed to meet their burden of proof to establish grounds for a conviction before the defense presents the defense's evidence. But, such formalities are often dispensed with in traffic court. Some courts allow post-trial motions to be made after a verdict within a certain number of days set by court rule asking the court to reconsider its decision or overturn a jury verdict, although these aren't always available in a traffic court case. Sometimes these issues are also raised in a pre-trial trial brief or in motion practice prior to trial. The amount of time allowed for closing, and discretion to consider arguments at times other than time usually allowed are in the discretion of the trial judge. Usually, courts are more lenient regarding formalities when a non-attorney is arguing a case. Usually, there is less opportunity to raise legal arguments following a trial if the traffic court is not a court of record and appeal is by trial de novo in a higher court, and there is more opportunity to do so if the trial is in a "court of record" in which a transcript is maintained and if the trial is a jury trial (although in a jury trial, the legal arguments are made out of the presence of the jury in a hearing over jury instructions, rather than before the jury). In a traffic case in a court of record, in front of a judge, five or ten minutes, at most, would be typical and trial briefs would rarely be considered, but the judge might listen longer or take the case under advisement and ask for further briefing, if the judge thinks that there is merit to a legal argument and wants to do further research (which would be extremely unusual in a traffic case). | There are two common defenses to defamation (there are others): That what you said is true. That what you said cannot be reasonably interpreted as a factual claim. If after examining the totality of the circumstances, a fact-finder (judge or jury) sees your statement to be an expression of opinion rather than a factual claim about the subject, you would not be found to have defamed the subject. The opinion defence doesn't have a bright line rule. In your example, I think it is clearly on the side of opinion. However, if you were to say something like "Douglas Dunce, Apple's Chief Engineer, has an IQ of 76", that would be almost certainly be deemed a factual claim. The leading case here is Milkovich v. Lorain Journal Co. The court held that "statements that cannot reasonably be interpreted as stating actual facts about an individual are protected". Other summaries of this defence: http://www.defamationlawblog.com/2009/01/fact-vs-opinion-setting-the-record-straight/ http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-summer-2011/opinion-defense-remains-str | Truth is a defense to defamation Bob must prove the truth of his statement if Rob sues - there is a reverse onus for this defense. Because this is a civil trial the burden is balance of probabilities. Provided Bob can prove Rob stole his bike he will win. A conviction for doing so is pretty good (but not necessarily conclusive) evidence. Absent that, Bob would need other evidence. Of course, if Bob has said that Rob was convicted of stealing the bike, he’s going to lose. |
Are press releases copyrighted? Many companies have a press release section on their websites called newsroom or another similar term, and some even title it "for the journalists". Does that mean those press releases and their multimedia attachments can be republished? | Anything that somebody writes is copyrighted, even if you call it a "press release". That means that nobody can copy it without permission. If you hand it out to a bunch of people and write "press release", the only reasonable interpretation of the designation "press release" is that you are granting permission to copy (as well as paraphrase). | I'm going to focus on one part of your question, because I think it is informative to the entire question: "By publishing those data in a copyrighted book are they now in the public domain?" Insofar as copyright is concerned, the "facts" are simply never copyrightable. What is copyrightable is the expression of the fact. So you publish a book and it contains many facts. You retain copyright over how you expressed the facts, meaning the word choice, format of presentation and so on. The discussion of this point always leads people to ask the following two questions: What if the "facts" are closely related to the way they are expressed? For example, a phonebook contains "facts" about phone numbers. The individual numbers are not subject to copyright. But if the way they were organized was clever (i.e. not merely alphabetical) the presentation may be copyrighted. Doesn't that line get blurred? Why doesn't "the presentation order" count as a "fact?" It does get blurred! And courts use nuanced case law and judgment to figure out which side of the line a given thing is. However, one backstop is that if AN EXPRESSION is so closely related to the IDEA BEING EXPRESSED that the IDEA cannot be otherwise expressed, then then the EXPRESSION is not subject to copyright protection. To answer your specific questions: The book is subject to copyright. The facts in the book are not. Someone else could publish a book with the same measurements so long as they are expressing the facts with sufficient difference from the original. I'm not familiar with CUSIP numbers. However, there are two things to say here. (A) it sounds like you are describing a contractual relationship between the people who have the numbers. This is not governed by copyright; it is governed by contract between the parties. If these numbers could be treated as a "trade secret" they might be protected IP in that way. But given that they are likely circulated at least a bit, they don't seem like candidates for "trade secret" protection. To your question, "what is the effect of one person leaking?" If "trade secret" law was doing any "work" here... then yes, the trade secret would be undone once the information was public. But like I said, its likely this is actually all about contracts not intellectual property protection. (B) The "facts" of "which number is associated with which instrument" is likely NOT subject to copyright at any time. The specific numbering code COULD BE copyrighted, but in reality is almost certainly TOO CLOSELY tied to the IDEA being expressed to be copyrighted. Could the number be expressed otherwise? If not, then its likely not protected by copyright. -- Big take away here: You seem to be confused about the concept of "facts" getting into the public domain. That's not exactly what copyright is about. Copyright would protect the expression of facts. An expression can become public domain if it is sufficiently old or if the creator designates it as public domain work. But simply "putting something out there" does nothing to alter the copyright status of the thing. | But while some libraries allow unrestricted use of their Public Domain content, others do not and limit the use of their copies to Non-Commercial use. It is my understanding that NC only applies to the digital copy, not the work itself. Your understanding is correct. An ancient text, or one long out of copyright, does not get new protection by creating an image of the text. At most the image itself is protected, not the underlying text. In the US, and other jurisdictiosn that follow the rule of the 1999 Bridgeman Art Library v. Corel Corp case there is no copyright protection on the image because it has no original content. Some EU courts have indicated that they will be following the logic of bridgeman. To the best of my knowledge no EU decision grants copyright protection to an otherwise out-of-copyright work because of its presence in a digital library or collection. However, if a person gained access to a digital library or collection subject to a TOS agreement which includes "no commercial use" terms and then published a text from it commercially, that person might be subject to a breech of contract or similar suit by the library. Such a suit would need to include proof of damages. | The article is public domain. The pictures aren’t If this was first published in the British Empire (as it then was), then The UK is the place of first publication. What follows is its status under UK law, other jurisdictions may have different results. The original article is public domain because H. C. P. Bell died in 1937 meaning copyright on everything he wrote expired 31 December 2007. If he’d lived until 1951 or later it would still be under copyright (in 2021). However, this isn’t the original article because: Text on this page extracted from an original copy of Annual Report. The photographs were taken when I visited the site in 1991, and again in November 1995. The bits that this unknown author added, including the photographs, are their copyright. Since they were clearly alive in 1995 (due to the well known pirate aphorism “dead men take no photos”) the copyright in those is still current. | It is clear that facts are not subject to copyright but the expression of them can be copyrightable. From your question it sounds like you are on solid ground but specific things you end up doing may or may not be free of copyright issues. Certain ways of organizing information that involves some minimal creativity may qualify to be copyright protected so your compilation might be protectable as a whole. You should look into the European protection for databases. It is not, like most of the rest of copyright law, based on minimal creativity but on the effort it takes to compile and maintain. From your question, this might help you protect your work rather than hurt your creation of your work. | Overview Under Near v. Minnesota it is very hard to "legally restrict" any publication in the US. The "Banned books" linked to in the question have, in some cases, been removed from particular school curricula or from library collections. A few have been challenged as obscene, but none of them are unavailable to the general public at this time. A work can be "legally banned" or "legally restricted" under US law for only a few reasons: Security A work that is actually classified cannot be lawfully distributed. However, referring to it or quoting from it would be legal unless the quoted content includes actual classified information. A problem with this is that one often does not know just what aspects of a document are in fact classified, short of asking the government. In many cases the restrictions on distributing classified material apply only to those who have accepted a security clearance or otherwise agreed to be bound by the classification system. However under the Espionage Act and the Atomic Energy act, and perhaps other laws, in some cases people who never accepted a clearance may be enjoined from disclosure, or possibly held criminally liable. This was challenged in United States v. Progressive, Inc. 467 F. Supp. 990 (W.D. Wis. 1979) (The "H-bomb Secret" case). But that case was dropped as moot when the information was published by others, and the DoE announced that they would not prosecute anyone involved. No final binding decision on the issues was made. A\n attempt to enjoin publication of classified information was famously overturns in New York Times Co. v. United States, 403 U.S. 713 (1971) (the "Pentagon Papers" case). In that case the material sought to be classified was historical, not of current operational importance. Obscenity A work found obscene under Miller v. California, 413 U.S. 15 (1973) is illegal to distribute. But it is legal to refer to such a book. It is legal to quote it, unless the quoted section is itself obscene under Miller. Note that content will not be found obscene under Miller unless it violates a specific law, usually a state law. Unless there is such a law, a prosecution does not pass the Miller test. This means that generalized laws such as "disturbing the peace" cannot be used to punish allegedly obscene content. Laws may prohibit content not obscene under Miller from being knowingly provided to minors, or shown in movie theaters under ratings which would permit minors to enter. A work containing child pornography is unlawful to create, distribute, or possess under 18 U.S.C. §2251 and subsequent sections. Quoting a part that includes child pornography as defined under those laws would be equally illegal, but quoting a part that does not include such content would not. Referring to such a book would not be illegal. Note that in the US only actual images of real children constitute child pornography. Drawings or computer images not based on any real child, and text, may not be banned under these laws. In some other countries, such content may be highly illegal. Defamation Republishing a work found to be defamatory would in many cases be defamation also, and could give rise to a successful lawsuit, but it is not a crime. A quote that did not include any of the defamatory statements would be lawful. A quote that did include defamatory statements may be protected under some circumstances, such as news reporting of the court case. It is lawful to refer to such a work. Criminal Libel Criminal libel was once common, but prosecutions for it are now very rare. According to the ACLU: Twenty-four states have laws that make it a crime to publicly say mean things about people, with penalties ranging from fines to imprisonment. These laws violate the First Amendment and are disproportionately used against people who criticize public officials or government employees. The ACLU has filed a lawsuit challenging the law in New Hampshire. According to Wikipedia: Criminal libel is rarely prosecuted but exists on the books in many states, and is constitutionally permitted in circumstances essentially identical to those where civil libel liability is constitutional. According to The First Amendment Encyclopedia's article: Although libel or defamation is now primarily a civil claim, it once was primarily a criminal offense, prosecuted by the government and punishable by imprisonment or a fine. In the United States, courts have based decisions regarding slanderous or libelous statements on the First Amendment rights of free speech and freedom of the press. ... There was also a growing sentiment against criminal libel, which led the drafters of the 1962 American Law Institute’s Model Penal Code specifically to exclude the crime of criminal defamation. ... [The US Supreme] Court ruled, in Garrison v. Louisiana (1964), that truth must be an absolute defense to criminal libel. The Court also held that the actual malice requirement in Sullivan applied to criminal libel prosecutions stemming from statements about public officials ... The Court’s most recent ruling regarding criminal libel was Ashton v. Kentucky (1966), which held that Kentucky’s unwritten, common law crime of libel was too indefinite and uncertain to be prosecuted. This ruling effectively eliminated common law criminal libel. In short, while criminal libel still exists in the US it is of very limited importance and rare occurrence. referring to a document publishing a criminal libel is not an offense. Quoting such a document could be an offense if the quotation includes the allegedly libelous statement(s). Copyright Infringement Distributing unauthorized copies of a work, or copies of an unauthorized derivative work, may be copyright infringement and be grounds or a successful infringement suit. Referring to such a work is lawful. Linking to an infringing work may in some cases be held to be contributory infringement. Quoting from such a work will in most cases be lawful, unless the quotation itself constitutes infringement. Quoting an excessive amount may itself be infringement. Note that a valid defense of fair use may mean that distributing copyrighted content is lawful, so that a suit will not succeed. Fair use issues are highly fact-driven, and no clear bright line can be drawn between what is and is not permitted. This seems to be by legislative intent. Fair use was originally a judge-made doctrine, incorporated into the Copyright Act of 1976. Note also that copyright infringement is usually a civil matter, so that if the copyright holder does not file suit, there is no enforcement. Only in willful bulk commercial infringement are criminal charges brought. Trade Secrets It is unlawful to publish, distribute, or use a trade secret to which one has gained improper access. Under the Uniform Trade Secrets Act (UTSA), specifically section 1.4: "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. "Improper means" of learning a trade secret (under the USTA, sec 1.1) include: theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. "Proper means" include: discovery by independent invention, reverse engineering, licensing arrangement, and published literature. The 2016 US Federal Defend Trade Secrets Act (18 U.S.C. § 1836) and the earlier US Economic Espionage Act of 1996 offer protection to trade secrets on a federal level. Note that like copyright, violation of a trade secret is a civil matter, not a crime. If the owner of a trade secret does not file a suit or take other legal action, there is no enforcement. It is not unlawful to refer to a trade secret or a document that discloses one. It is not unlawful to disclose a trade secret that has already become public knowledge, although an actual document may well be protected by copyright. Conclusion Simply referring to a work is almost never unlawful. Quoting from a work that is actually legally restricted will generally only be unlawful if the quoted content alone violates the same law or is on its own the same tort. | I don't think it's in the public domain. It is true that "works of the United States Government" cannot be copyrighted (17 USC 105). However, "work of the United States Government" is defined as a work prepared by an officer or employee of the United States Government as part of that person’s official duties. (17 USC 101) The pool photographer isn't an officer or employee of the United States Government; he works for the New York Times. The satire question is separate and I don't know the answer to that. | If one is writing about a work of fiction, one may describe the work, and use terms from the work in doing so. One might write, for example: In Spaceman Sam the characters use "blasters" as weapons, while in Jack of the Galaxy "contragravity" is used to propel "aircars" These are facts, and copyright may never be used to protect facts. Moreover, such uses as reviews and criticism are particularly likely to constitute fair use under US law, or another exception to copyright under the law of some other country, even if some otherwise protected content is quoted. If something appeared in that sci-fi universe prior to me re-iterating it; does that mean it's fair game for me to use? If the "something" that appeared earlier is an "idea" or a name, it is indeed fair game. This is true whether it is obscure or well-known. In any case describing the facts of the fiction, even in detail, is generally not an infringement. If "re-iterating" something from an existing work in a new fiction involves an extensive quotation, or a detailed, point-by-point reuse of a fictional element, that might constitute infringement, unless fair use or another exception to copyright applies. Does intellectual law protect very specific plot concepts? No, it doesn't. A plot concept is an idea. In the US, 17 USV 103(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. Laws in other countries are similar on this point. This is sometimes known as the idea/expression distinction. This means that while the expression used to embody a concept is often protected by copyright, the concept itself never is. Are you allowed to borrow names of different generic sci-fi inventions that aren't super-important to the story. Yes. In fact even the names of fictional technological devices that are very important to a story may be, and often are, reused in different works by different authors. For example Ursula LeGuin used "ansible" as the name of a faster-then-light communicator, in fact an instantaneous communication device, in her "Hanish" series, particularly in The Left Hand of Darkness, The Dispossessed, and The Word for World is Forest. (She wrote that the term was derived from the word "answerable".) The term and concept were reused by Vernor Vinge in "The Blabber" and A Fire Upon the Deep, and by Elizabeth Moon in the "Sassanek" series and more centrally in the "Vatta's war" series starting with Trading in Danger. Moreover, the names of fictional characters are not protected. An author might introduce characters with names borrowed from Tolkien, Heinlein, or other well-known (or obscure) fictional works. US Copyright Office circular #33 "Works not protected by Copyright" says that "names, titles, and short phrases" may not be protected by copyright, and will not be separably registered. However, if a character has not only the name of a previous character, but a detailed, point-by-point similarity in distinctive elements to a character in a protected work, that may be enough to make the newer work a derivative work, and thus be infringing if permission is not obtained from the copyright holder on the source work. The same is true of the detailed reproduction of a distinctive setting from a source work. But a mere name and broad, general description is not enough tom make a later work derivative. The more details are reproduced, and the more distinctive and specific those details are, the more likely the newer work is to be found distinctive. |
Is It Legal to Create A Virtual Copy of a Physical Board Game If I Own A Copy of the Physical Game? Since COVID-19 has senior centers shut down, I'm thinking of holding a virtual game night at these centers. I'd like to allow the seniors to play games like Risk or Monopoly against each other on laptops. Board game manufacturers often don't have very good digital versions of their games, so I was thinking of using Tabletop Simulator to recreate the game virtually. However, a virtual version of the game made with copyrighted artwork downloaded from the internet isn't legal. I know you can make a digital copy of a book or CD you own. If I owned a board game and used digital copies of the game's artwork I made to create a virtual version of the game, would this be legal? The virtual game would only be used for this project, and I wouldn't distribute the artwork to anyone else. Thank you! | This a bit dubious. You write "I know you can make a digital copy of a book or CD you own." but that is true only under limited circumstances. Making such a copy for one's own personal use would likely be fair use (in the US). Selling copies would pretty clearly be copyright infringement. Giving away free copies to significant numbers of people would also be infringement. Temporarily lending copies ro a small number of people might be considered fair use or might not. For the board game, you could allow others to play with the copy you own in person. But COVID makes that unsafe. Assuming the game art is under copyright protection (some older games might have protection expired) selling such images or making them widely available would clearly be infringement. Making them available only during the course of play to a limited group, with technical measures to prevent or discourage copying and no fee charged might pass as fair use, and the game company might well not want to pursue the matter in any case. If you create new art which can be used for the same game, it would be somewhat less likely to be considered infringing/ Even then selling access would probably be trademark infringement, and perhaps infringe the copyright on the rules of the game. There would be legal risk in doing this sort of thing. | That would be pretty much a classical case of copyright infringement. Drawing a thing from memory is copying just as much as drawing a thing with the original before you or xeroxing a thing. The degree of match between the original and your copy may vary depending on how good your memory is, but that doesn't matter, because copyright protection is not about "making exact replicas", it is about copying in any form. | Copyright Prominent at the bottom of the page is: © RealClearPolitics 2015 This is nice because it tells you who you have to approach for a licence. If it wasn't there the material would still be copyright you just wouldn't know who owned the copyright. Questions So: If I'm looking to build an app or write a book and I wish to use statistics, am I allowed to basically use their numbers as long as I cite where it is coming from? No, unless what you do constitutes fair use and I don't think it does. If I do make a profit from it, do I owe any royalties to the original scientists/surveyers? No, but you would owe whatever licence fee you negotiated with the copyright holder, ostensibly RealClearPolitics. Must I ask them for permission? Yes, unless you are OK with running the risk of being sued. Commentary I see books reference hundreds of studies all the time This is because they are generally protected by Academic Fair Use public polls should be open information to everyone The only public poll that I know of is an election and that information is available. What you are looking at is a private poll commissioned by and paid for by RealClearPolitics and it is their intellectual property; why should that "be open information to everyone"? commercial interests may be legally entangling Always | The DMCA prohibits circumvention of technological measures that effectively control access to a copyrighted work. So you can't legally "crack" the software, period -- even if you own a disc containing the software and have a valid license to use it, a license to use the work is not authorization to circumvent access controls. So if the disc is copy-protected, by my understanding of the DMCA, you're kinda screwed. (The company might be willing to provide you a replacement copy, even if only to maintain the illusion that the software is "licensed, not sold". But you can't make one yourself.) Likewise, if you have a copy of the disc but have lost the license key, you're screwed. Even if you could prove beyond any doubt that you are the licensee, there's not any law i'm aware of that would compel the copyright owner to provide you another license key. And courts have held that distribution of license keys without authorization is a violation of the DMCA. So whoever might provide you another key, if they're not the copyright holder, has broken the law. If you managed to copy the disc from a friend (without circumventing any kind of copy protection), and had your own license key, you might be in a better position. Many EULAs allow you to make a backup copy. Even if they didn't, copyright law does, so there's a possible case for fair use. | 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. | 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. | Yes, you do. But you should not base your claim primarily on copyright, but just on the license contract you agreed to. It's typically much easier to prove that a party did not fulfill its part of a sales contract (here: Pay the agreed amount) than to prove violation of a copyright you own. Also, you then only need to sue one guy, and not care about every platform your game might be hosted on. This is particularly difficult here, since they have not done anything wrong. It's not their fault that the publisher didn't properly pay the programmer. They (very likely) got their copy of the game legally. For details, you should consult a lawyer. We can't give you detailed legal advice. | The current version of copyright law in the PRC is here. Art. 10 states what is protected, which includes the standard rights of distribution, copying, modification and so on (which makes software cracking illegal). Article 22 gives the equivalent of the Fair Use limitation on copyright protection: a work may be exploited without the permission from, and without payment of remuneration to, the copyright owner, provided that the name of the author and the title of the work are mentioned and the other rights enjoyed by the copyright owner by virtue of this Law are not infringed upon for 12 specific reasons (translation into Braille or a minority national language, free public performances, quotation to make a point end so on), which includes some potentially applicable reasons (1) use of a published work for the purposes of the user's own private study, research or self-entertainment (6) translation or reproduction, in a small quality of copies, of a published work for use by teachers or scientific researchers in classroom teaching or scientific research, provided that the translation or reproduction is not published or distributed (7) use of a published work by a State organ within the reasonable scope for the purpose of fulfilling its official duties It is unclear what "State organ" refers to and it is unlikely that a university is a "State organ". It is unlikely that (1) and (6) are interpreted as an across-the-board "education exception" to copyright, but that could be an avenue for legality. The standard misconception of copyright law is that anything done for educational purposes is allowed, and the PRC law seems to have at least the seeds of such a misunderstanding. However... software protection is subject to separate regulation in Decree No.339 of the State Council, an English version being here. The regulations recapitulate the basics of copyright protection; software cracking is regulated under Art. 23, which says that anyone who commits any of the following acts of infringement shall, in light of the circumstances, bear civil liability by means of ceasing infringements, eliminating ill effects, making an apology, or compensating for losses:... (5)to alter or translate a piece of software without the authorization Art. 24 continues, saying that it is forbidden (3) to knowingly circumvent or sabotage technological measures used by the copyright owner for protecting the software copyright; (4) to knowingly remove or alter any electronic rights management information attached to a copy of a piece of software That covers cracking. Article 30 covers the situation of someone using pre-cracked software: A holder of copies of a piece of software that neither knows nor has reasonable grounds to know that such copies are infringing ones does not bear liability of compensation but shall cease the use of, and destroy, the infringing copies. Nevertheless, if the cease of use or the destruction of such copies is likely to cause heavy losses to him, the holder of such copies may, after paying reasonable remuneration to the software copyright owner, continue to use such copies. A mere user who is discovered simply has to stop, unless they should have known that the copy was illegal in which case they would be responsible for compensating the rights holder – I have no idea what the standards are for having reasonable grounds to know. |
What effect does bad English have on warnings / disclaimers? I've come across more than one case of ill-phrased 'legalese' and often wondered where the line is with respect to enforcibalilty etc. For example, a McDonalds promotion which disclaimed: "Offer ends October 30 or while supplies last". Does nonsense invalidate it, or is it a case of clear intent conveyed in muddled language? I was reminded of this by a sign I saw on a recent trip: Yes, we know what they mean, but really, is this enforceable? | Law does not have an all-encompassing syntax and structure that, if not followed, makes it null and void. If a reasonable person could determine that (in the example of the sign you have) you are required to get written permission from any or all of the Paulding County Commissioners, then the sign is enforceable. I honestly don't see anything wrong with the sign you are displaying, it is reasonably clear. If, for example the notice contains an ambiguity or unclear phrase, the "spirit" of the law or sign is upheld. If the sign had said something to the effect of "No trespassing without permission". It doesn't say who you need permission from, but you can reasonably ascertain that you must have permission from somebody in control of the land. There is no line in the sand here. Often when a dispute in a contract comes up where it could be interpreted more than one way, it is often interpreted in favor of the person who did not write the contract. "Offer ends October 30 or while supplies last" Isn't really "ill-phrased" either. I assure you that those statements are vetted by highly paid lawyers from many jurisdictions. I'm not sure what "nonsense" you would be referring to in there. If the vendor runs out of promotional materials the promotion ends... If they had said "free hats to the first 100 customers on December 31st", you can't show up as the 101st customer and demand a hat, nor could you show up on January 1st (even if there were not 100 customers the previous day) and demand one either. | In general, the express terms of the lease signed supersede all prior negotiations of the parties, except to the extent that the particular language in question in the lease is ambiguous. This is called the parol evidence rule (which is the law in all U.S. jurisdictions although it has been expressly rejected in Israel). The parol evidence rule expressly makes a written agreement supersede a verbal agreement, rather than making them equally valid. Also, even if both agreements had been written, generally speaking, the last and final version of the agreement will supersede earlier versions of the agreement. The best defense would be along the lines of fraud-in-factum or fraudulent inducement, i.e. that this term was slipped into the final draft in a manner expressly intended to mislead the signing party about what was being signed. I've won one case where this happened (where there was extensive email correspondence between business lawyers regarding the changes that would be made in each draft and there the version signed did not correspond to the last version signed electronically in a very long document on paper and there were other indicia of fraud), but by far the more common outcome is to bind the party signing the document (especially in a commercial context) and to consider failing to carefully read all terms of the final draft to be negligent on the part of the party signing the contract. Arguably, there might also be a malpractice claim against the lawyer for the tenant for missing this change in a material term before the contract was signed. | 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. | The question does not say what reasons the other party gives for not paying, and so one cannot judge whether such reason is covered by the terms quoted in the question. In general a contract need not be highly specific if the intent is clear. However, any ambiguity will usually be resolved against the party who wrote the contract, so it is in that party's interest to be as clear and specific as possible. It is not clear from the quoted terms that they form a contract at all. No consideration is stated. Contractual provisions which deny all recourse are not always enforceable. They may be overruled by law or regulation, or by prior court decision or by an equitable decision. If there is a serious problem with the service provided, particularly in a consumer transaction, a court might reject a provision denying all refunds even if it is quite specific and clear. The question does not list the jurisdiction (country and, for federal countries, state or province). Laws on contracts and enforceable terms vary significantly in different jurisdictions. Without this a specific answer is not possible. | Language is contextual. When the meaning of a communication is at issue in litigation, that meaning is gleaned from the totality of the evidence, not from any presumption of what a word means in isolation. "Okay" can mean "yes", it might mean only that you understand, it might communicate coerced acquiesence falling short of actual consent. See the discussion in R. c. Byers, 2018 QCCQ 4673: [81] Regarding the petitioner’s pretention claiming that she “clearly express her wish to consult an attorney”, the Court considers that the answer “OK” does not show a clear intention to consult a lawyer. [82] At the most “OK” could mean that she understood, that she heard them and also could [have] signified “Yes, I would like to consult an attorney”. [83] In the decision Ellis, the Court of appeal had to analyze the meaning of the words “OK” as part of evidence of purchasing a firearm, the Court considered that this had an equivocal meaning. [84] Moreover, the Court wrote: “[40] (…) Viewed in the context of the whole of the evidence, we consider it a reasonable inference that the two responses “Ok ok” signified nothing more than an acknowledgement of the prices quoted.” [85] For analysis purpose, the Court will consider that the answer “OK” means “yes”. See also R. v. Potvin, 2012 ONCA 113: The pertinent facts known to the appellant were straightforward. The complainant repeatedly said “no” to sex and then appeared to say “yes” by uttering the word “okay”. Viewed in the context of all that preceded it, we agree with the trial judge that the complainant’s use of the word “okay” was ambiguous. In the absence of further inquiry by the appellant, a single “okay” after five refusals over a sustained period of time was simply insufficient to ground a reasonable but mistaken belief in consent. | england-and-wales northern-ireland General rule It doesn't make any difference. Section 7 of the Interpretation Act 1978 provides: Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. Provided you meet the following elements: Properly addressing Properly pre-paying Properly posting, then you can take advantage of the above deemed delivery rule. It also makes no difference whether or not the recipient "might or might not bother to open" it. What matters is when it was delivered. The rebuttable presumption is that the notice is effective when it would have been "delivered in the ordinary course of post" (e.g. next day for first class, etc.). To rebut that, the burden of proof shifts to the recipient, who must prove (on balance of probabilities in a civil case) that it was delivered late or not at all. In practice that will be extremely difficult in the majority of cases. You might try to make an argument that "letter containing the document" implies an envelope. However, in my view, the ordinary meaning of the word letter means a piece of paper with some written words on it. A letter is still a letter even when it isn't inserted in an envelope. "Contains the document" suggests to me that the document is found within the words written on the piece of paper. Exceptions The phrase "unless the contrary intention appears" means that if a particular Act contains its own rules of service which contradict Section 7, then Section 7 will be overridden. | First, if by "they say" you literally mean they use spoken words, and not a printed advertisement, or an advertisement on the internet that you can print out, then you may have a hard time proving what they said. If you can prove what they said that would be very helpful, a seller may be in trouble if their contract is not the same as what they promised. If things go to court, then a judge will first figure out what the contract is (let's say both sides have a copy of the contract - but the words are different, then a jury decides). That's not what we have here. Then the judge decides what the words in the contract mean. If the words are ambiguous, then the judge interprets the words in favour of the person who didn't write the contract. | Point three should include "to the best of my knowledge and belief", or be modified to state that none of those "house or the adjacent shop" have informed the affiant of any such delivery, or delivered any such package to the affiant. It might add that the affiant had questioned such persons and they denied receiving such a delivery. The point here, of course, is to prove that the package was never properly delivered, no doubt in support of a claim on the delivery service. The ordinary assumption is that if a person in the "house or the adjacent shop" had accepted a package, it would normally have been given to the addressee at an early opportunity. |
What are the top introductory texts on the Justinian Codex? I'm a non-lawyer interested in reading an introduction to the Justinian Codex such as would be assigned to orient students in a law school program. What are the usual suspects here? Thanks, | When? There are basically several times to look at when you want to look at the text, and then in what language. The Codex Iustinianus itself is part of the Corpus iuris civilis and contained only laws given by the previous emperors, while other older laws were in the Digesta/Pandecta and the Novellae contained any new imperial laws after 534. The whole CICiv, was given an introductory text right from inception: When it was compiled, back around 528, one of the books of the CICiv was the Institutiones Iustiniani, which was the prescribed legal education basis - the study book for the aspiring lawyers of his time. It contained how to practice law and cases that were to be discussed. On this basis, a glossa marginalis commentary has survived in Turin, which was made from a copy of the Institutiones. The commentary is dated to be contemporary to the CICiv and was made by adding comments around the real text, making researchers believe this was a work by a teacher, so he could answer or explain parts of the text, or reference earlier parts of the book easier. Around the 7th century, the Pandekta/Digesta were pretty much forgotten in big parts. In the middle ages, it took about till late 1000s, early 1100s, to re-compile the CICiv, when Irnerius of Bologna did manage to collect a sizeable portion of it by rediscovering the Littera Florentina and added to this collection by referencing earlier glossae. The Florentina alone is more than 900 pages long, and his littera vulgata/bologniensis (a german edition's Bibliography an Italian edition's bibliography), a new commentary on the re-compiled laws, including large parts of the Digesta. This book became the new introduction and teaching text about the CICiv and leading teaching bok for all lawyers in Europe at that time. This text is, what defined the roman tradition of law In the 19th century, legal scholars that studied a lot of the CICiv and argued along those lines - a style predominantly Existant in Germany - were known as Pandectists. One of the more central books of them was the Lehrbuch der Pandeketen by Karl Ludwig Arndts von Arnesberg (Stuttgart 1877). The praxis that developed in these circles greatly did influence the style of how the German Bürgerliches Gesetzbuch BGB was organized and written, and this systematic was exported. Later, books such as Paul Koschaker: Europa und das römische Recht (4th edition Munich 1966) did recept the whole roman legal body, giving the CiCiv a very thorough look, and how it influenced the modern Code Civil and Germanic tradition of law, while Franz Wieacker: Privatrechtsgeschichte der Neuzeit unter besonderer Berücksichtigung der deutschen Entwicklung (2nd Edition, Göttingen 1967) did look at the Pandectists and how they were influenced by the CICiv. As more scholarly works I want to point to three that were referenced in the notes of the page when my ancient history Professor mentioned Roman Law being "verklauselt, kompliziert und voller sonderfälle" (~complicated and with many exceptions) in passing. A Short History of Roman Law by Olga Tellegen-Couperus (1993) does spare the last 8 pages on the CiCiv. The more thorough Herbert Felix Jolowicz; Barry Nicholas: Historical Introduction to the Study of Roman Law (Cambridge 1967) does spare the last chapters on the CICiv. Adolf Berger, Adolf: Encyclopedic Dictionary of Roman Law (The American Journal of Philology 1953) is taken still one of the main shorthands and (sometimes outdated) bibliographies under historians. Large parts of the Latin CICiv (as #12) can be accessed in "the Roman Law Library" by the Grenoble University, together with edition scans. | It can (and has) been argued that some of the post-bellum trials of Germans and Japanese (but no Italians because they were Allies now) proceeded on shaky legal grounds. However, the arguments of your friend are wrong. In addition, many of the cases proceeded on solid legal foundations based on war crimes (e.g. the Commando Order) and treatment of prisoners-of-war (e.g. the Stalag-Luft III murders). Citizens and non-citizens are protected by the law and were even in Nazi Germany, albeit not equally. The Nuremberg Laws did not classify Jews as non-humans, merely as non-citizens (which is not to trivialise their awfulness). Superior orders has never been a recognised defence for criminal acts under civil or common law. The first recorded rejection of this defence was in the trial of Peter von Hagenbach in 1474. The roots of modern International Law can be traced to the 16th century and were definitely well advanced by the 19th, let alone the mid-20th. Nations accepted that international treaties and diplomacy were supported by international law and these included the Geneva Conventions of 1864, 1906 and 1929, since updated in 1949 (of which Germany was a signatory) among many others. In addition, since the Enabling Act (which instituted Hitler's dictatorship) was quite probably illegal, it can be reasonably argued that all actions that flowed from it (i.e. basically everything that the Nazi's were tried for) was illegal under German law. | Congratulations, intrepid legal enthusiast or learner! What you'll need A legal dictionary, especially if you're just getting started. If you don't own one, you can try Black's Law Dictionary A little bit of patience and time. Or maybe a lot, depending on the particular case and the particular question you're trying to answer. Maybe a normal dictionary, too. Again, if you don't own one, there's plenty online. Onelook is a dictionary search engine, so it'll search a lot of dictionaries at the same time. Okay, I've got those things, now what? Alright, there's a few things you should know. Firstly, decisions of superior courts are binding only on those inferior courts within the same hierarchy. This means that you can appeal to a higher court so long as it has appellate jurisdiction. Generally, a state (meaning a country) will have a supreme or highest court, with appellate jurisdiction over all other courts - in Australia, this is the High Court of Australia, in the United States, this is the Supreme Court of the United States, and in the United Kingdom, this is the Supreme Court of the United Kingdom. Secondly, decisions of a court are generally binding only on the matter in dispute. For example, if in a case, the matter of whether the police owe a duty of care to citizens in detecting crime, a comment on whether the police had correctly parked their vehicle is not binding - it is called obiter dictum (plural obiter dicta). What we're looking for in a judgement is the ratio decidendi (plural rationes decidendi), which is the reason for the decision. This is what is binding, and would be considered in future decisions. The problem? It's not always easy to tell the ratio from the obiter. Finally, often, the only way to know whether our interpretation of a case is right is to see whether it is applied in a future case, or overruled. Examples, examples! Sure. Let's try something easy to start with. Do product manufacturers owe a duty of care to their customers? Yes. The decision in Donoghue v Stevenson [1932] UKHL 100 found that product manufacturers - in this case, a ginger beer manufacturer - have a duty of care to ensure their products are safe for use or consumption. Lord Atkin said: The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Okay, so the answer to this question is yes. How do I verify it? Get the source of the judgement. Without this, you're going to be relying on hearsay. The next best thing is a subsequent judgement that applies the one you're looking for, because if the judgement says what it's supposed to, it'll be mentioned in the subsequent judgement. I've found this one. Decide whether the matter in dispute is actually being decided. In our case, it is. But if I was quoting this from a judgement on whether product manufacturers have an obligation to transfer title for goods supplied on a credit agreement, it wouldn't be binding. Find the quote. If you've been given a quote. Otherwise, grab a cup of tea or coffee and get ready to read. A lot. If you can't find something that says, or means, what it's supposed to, it's probably not accurate. Make sure the judgement hasn't been overruled This is tricky, unless the judgement database you're using has a way of searching it. Most do. In any case, it's much like trying to prove a negative. In fact, it's exactly that. But always check whether the judgement has been overturned on appeal. Make sure the judgement hasn't been obsoleted by statute Again, this is tricky. It's proving a negative, again. And trying to find statute might be an answer for another time. Is that it? Pretty much, I think. These are at least the main points. There's a whole laundry list of things you shouldn't do with judgements, but they're more about reasoning than legal principles. It's a skill you can really only develop by using, and I'm constantly practising myself. Many discussions about cases are precisely about what their effect is. Yes, the decisions and orders are usually pretty clear-cut - for example, the decision is that the manufacturer has a duty of care, and the orders are for damages and costs to be paid. But what it means beyond that can be murky. Luckily for us, judges have become better at writing their judgements so that others can understand. Also, for more important cases, where the entire country, or world, is watching, others will interpret it for you - consider Obergefell v Hodges, for example. Not everyone can be trusted, but everyone, taken together, is a much more trustworthy source than just one person. In the end, there's not a mathematical formula for determining what judgements mean. There's some interpretation involved, some judgement. There's not always going to be one judgement that's enough to prove your matter. I'm struggling to end this post neatly so I'll just finish it with a cliff- | 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. | 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. | Whoever "derived" the illegal derivative work most likely has copyright in his derivations, unless they are not worth copyright protections. Say I take the Harry Potter books and add a few chapters and try to sell it - that's copyright infringement of course, but I have the copyright on these additional chapters. However, I don't have the right to allow you to copy the derived work. And even if you have the right to copy the original work, you don't have the right to copy the derived work because it is a different work. I could extract my changes, and allow you to take them and do with them what you like. You could then create an illegally derived work yourself. I couldn't sue you, but the original copyright holder could. To the comments: One, a work and a derivative of the work are not the same, so even if you have the right to make a copy of a work, that doesn’t give you any right whatsoever to copy a derivative work - they are not the same work. Two, the copyright holder has the exclusive right to control copying and the creation of derivative works. If the copyright holder doesn’t want derivatives to exist, then creating them, copying them etc. is always copyright infringement. | Your lawyer friend is misguided Casual conversation and writing are not subject to any maxims of interpretation - the words mean what the speaker/writer says and what the listener/reader understands and these may be different things. In a conversation about restaurants, there is no implication that the places not mentioned are not restaurants or don't exist. Even if I were to write a published magazine article called "The 10 best restaurants in the world", there is no implication that no other restaurant can possibly be better than those 10. This applies even in business settings. For example, this is the Petbarn logo: It has images of dogs, fish, cats, and birds. By your friend's argument, it would be unlawful for them to sell products for the care of pet snakes or lizards since they aren't on the sign? Or, for that matter, to operate from a building that is not a "barn"? Finally, your friend is wrong even in legal interpretation. There are many ways of contract and legislative interpretation that are or have been in use in every jurisdiction. "Expressio Unius Est Exclusio Alterius" is one maxim of interpretation but it may be in conflict with others. For example, if a regulation on aircraft listed various types of aircraft but didn't mention helicopters but nevertheless had an entire section devoted to rotor maintenance the "Rule against surplusage" would require that helicopters be included. In any event, modern courts tend to take a more holistic view to interpretation and the use of individual maxims is optional. | You would be amazed at how vanishingly few the number of cases are where a signature is disputed. Signatures are easy, quick and don't require you having inky fingers all the time. They are so useful that to throw them out to deal with infinintesimally small fractions of disputes over their veracity (bearing in mind that 99.999999999% of contracts never have a dispute that gets to a court [or at all]) is ridiculous. When it does happen, handwriting analysis is probably not going to be put into evidence anyway. Testimony like "I saw him sign it" is way more likely to be used. |
Can a programmer be liable if a customer commits a crime using their software? Is it true that if a programmer writes a program, sells the program to a customer and customer commits a crime with this program, the programmer might be found liable by the court? I was wondering as there are many Turing complete languages that allow one to make something illegal. Also, there are some robot cars, and if one calibrates them incorrectly, those can commit crimes. So can a programmer ever be liable if they have not done anything illegal with software, but the customer does? | Some jurisdictions have laws which make it illegal to create a software which is intended to commit crimes (usually computer-related crimes). For example, the German criminal law §202c StGB makes it illegal to create (or sell, convey, etc.) a program which has the purpose to commit crimes against the previous paragraphs 202a (stealing data) or 202b (intercepting data). The constitutional court later clarified that this law is only to be used against programs which serve no other purpose than to commit crimes and not against "dual use" tools which can also be used for legitimate purposes. So if one were accused of committing the crime of creating such a program, then a possible defense strategy could be to convince the court that they never intended for their program to be used to commit crimes. | A fundamental requirement of criminal culpability is intent. Based on the description this whole process is happening after a user has already had their phone seized. If a person was not aware of Signal's hidden files to damage the police's data forensics software, they will not have met the criminal intent requirement, either maliciously or under a criminal negligence theory. None of the prongs of CFAA are strict liability statutes (18 U.S. Code § 1030 "Whoever having knowingly accessed a computer..."), so that would not apply here. If we imagine a person that is aware of all the information from Signal about their app intentionally abusing Cellebrite's package and with intention to cause damage downloads Signal's malicious files to their phone, I think it's an open question whether or not they would be liable under the CFAA. Specifically, 18 U.S. Code § 1030(a)(5)(A) (emphasis mine) Whoever knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; An argument on this could go both ways. On the one hand, the owner of the phone could be found to not have substantially caused the information to be transmitted to a protected computer, as the police were the integral cause for that in executing their warrant. On the other hand, this sort of file could be considered a digital "booby trap," and booby traps are illegal for essentially this reason, that they have a foreseeable effect of causing harm to people who are lawfully inside a building without the owner's permission. In this case, the owner's trap was sprung by law enforcement but still placed by the owner in order to damage them. | Since there are cases where it is legal to break into a car, is it legal to publish a guide on how to break into a car online? It is legal to publish this guide. Indeed, it is legal to do so even if there are no cases where it is legal to do so. Does it need to have a disclaimer saying to comply with all applicable laws? No. Could the author be held responsible if someone uses the instructions to illegally break into a car? Generally not. I could imagine that there might be some very specific and exceptional fact pattern where it might, but that would be the rare exception. But see man sentenced to twenty-years in prison after pledging support to ISIS and uploading a bomb making video related to that pledge. | If you use the reviewer's code, or code derived from it (e.g. if you just changed a variable name) then they own the copyright on that part of the software. If the reviewer describes a solution which you implement, or if you re-implement the code from scratch while taking ideas and methods from the reviewer's code, then you own the copyright on that code. However if there are only a few ways to implement something in code then the code is not creative and hence cannot be copyrighted. For example the regular expression in the question you link to is (as far as I can tell) the only correct solution to the problem: any programmer addressing the problem will have come up with that RE. In this the position is akin to a database of phone numbers: while the collection may be copyright (depending on whether selection or arrangement required creativity), the fact that Alice Jones has the number 012345 is not copyrightable, and neither is the alphabetical arrangement of names. Where it gets messy is the boundary between the two. The requirement to detect 4 or more repeated digits in a credit card number could be implemented in a number of ways, but whether there are enough of these to qualify any particular solution as "creative" would be a matter of fact for a court to decide. | The EULA is in most jurisdictions a legally binding contract; there is plenty of case law that supports this. You can only be liable under a contract for breaching its terms and only to the extent that the other party suffers harm from that breach. Clearly, if you haven't read the terms then you are greatly increasing the chance that you will inadvertently breach them but not reading them would not, of itself, be a breach and I can't see what harm could flow anyway. | It depends on what you are selling to the enterprises. You could be selling just a licence to use the program, and retain all the rights on the source code. You could be selling the rights to the source code. For #1, the source code is yours and you can do what it pleases with it1. In fact many programs offer both an open-source licence (which usually forces the user to make its changes to the code publicly available) and a commercial one (which allows the user to keep the modifications of the source code for themselves). For #2, the source code is no longer yours so it is not up to you to decide what to do with it. 1I am assuming no other agreements imposing limits on those; for example that none of your contracts to your customers have a clause forbidding you from making the code available to the public. | There are two processes that go on all the time, and are generally considered legal: Encryption algorithms are attacked by cryptographers and weaknesses identified. In most cases this results in a gradual reduction of the work required to break the algorithm by a few orders of magnitude at a time. The history of SHA-1 is a good example of this. People identify security holes in software and follow responsible disclosure rules. This means that they notify the vendor and give them an opportunity to fix the bug before going public. Note that this is merely considered good practice; immediate publication would be legal too. Your scenario sits at the intersection of these two processes: an attack (process 1) which completely destroys the security of many systems (process 2). Responsible disclosure occupies a legal grey area: someone who finds a bug might have had to exploit it to at least some degree to demonstrate it, and there have been cases where vendors have used police or courts to retaliate. However this wouldn't apply to your scenario. In America the First Amendment makes it unconstitutional to use the legal system to stop people saying true things (copyright excepted, and untrue things are often legal too). If your Wunderkind lives in America then a widely published factual description of their solution would therefore be legal. Legal problems only start if they provide the details in secret to people they should reasonably suspect of intending to use them for crime. | If it's patented then it doesn't matter that you independently came up with it. Most software is not patented, though. Most developers do not even think about patents when writing code. In theory you could spend your time keeping up to date on software patents so that you avoid infringing. But this probably only makes sense for specialists who would want to read the latest patents in their field anyway. All software is protected by literary copyright, though. In this case they will try to prove that you did not independently created it, and did copy it. Whelan v. Jaslow in 1986 ruled that structure, sequence and organization of a computer program were protected by copyright. So you could be liable even if you did not just copy and paste sections of code. But even if you're worried the court would get things wrong and think you copied a program when you never even saw it in the first place, there is really nothing you can do about it. |
Is it legal for Microsoft to install software without user approval? On several occasions, Microsoft had misled their users to forcefully install updates or unwanted programs (like Windows 10 on Windows 7 here, here, here, and here), it also has forcefully installed the new Edge chromium web browser on W10 computers, and now is forcefully installing office webapps. Is this legal? | Unauthorized access to a computer is a crime in most parts of the world However, Microsoft's access is not unauthorized (my emphasis): Updates. The softwareperiodically [sic] checks for system and app updates, and downloads and installs them for you. You may obtain updates only from Microsoft or authorized sources, and Microsoft may need to update your system to provide you with those updates. By accepting this agreement, you agree to receive these types of automatic updates without any additional notice. You agreed to this when you installed Windows 10. As a law site - we don't consider whether things that are legal are ethical. | Almost every site does this. See, for example, the bottom of your screen and read the terms and conditions linked in this text: user contributions licensed under cc by-sa 3.0 with attribution required | Yep, you are. You still need to keep the LICENSE and NOTICE files in the repository, if there were any in your copy of the project. These files contain the terms and conditions for the project, and provide attribution to the original developers. If you're trying to attribute in the UI of your application, you probably should. It's considered courteous and in the spirit of open source as well. This is also related: Do I need to include the full text of the MIT license in the UI of my app? | Ok here is my go at answering my own question: (see comments above & below for links) Depending on what you want to do, GPL can be a bit complicated, with multiple versions, version numbers, and added exceptions over the years. it can be a headache. However, for this purposes of app development incorporating GPL/LGPL libraries, it is fairly straightforward. Keep in mind to check version numbers on all relevant documents, although they are most likely v3.0. As far as I know linking to a GPL library binds you to also releasing your code under GPL. So that is a no-go for closed source, but that brings me to my 1st question. is it legal for me to remain closed source while incorporating external libs that are both BSD and LGPL? and I think the answer to that is yes provided that I dynamically link to said component (.so .dll .dylib .framework). Permission of this is granted under section 4d of LGPL v3.0. d) Do one of the following: 0) Convey the Minimal Corresponding Source under the terms of this License, and the Corresponding Application Code in a form suitable for, and under terms that permit, the user to recombine or relink the Application with a modified version of the Linked Version to produce a modified Combined Work, in the manner specified by section 6 of the GNU GPL for conveying Corresponding Source. 1) Use a suitable shared library mechanism for linking with the Library. A suitable mechanism is one that (a) uses at run time a copy of the Library already present on the user's computer system, and (b) will operate properly with a modified version of the Library that is interface-compatible with the Linked Version. My 2nd question Would it change the ability for me to stay closed source if i were to use an altered version of one of these libraries? It is my interpretation that in this case the only source you would need to provide is that of the modified library, and that the application itself can remain closed source. I'm basing this on grounds that nothing has changed from the situation for my 1st question other than the fact that the modified component library is now a derivative work under standard GPL v3.0. finally my 3rd question what is the legal effect on static vs dynamic linking? This seams to be a bit iffy. Again see section 4d of the LGPL v3.0. By this wording dynamic linking is much preferable, and there are basically no requirements. If you choose to link statically though(in other words as part of the project build) things get complicated. To fully understand see LGPL definition of "Corresponding Application Code", and then see sections 4 5 and 6 of the GPL document. Full source is not required, but as far as i can tell you are required to provide all necessary materials for someone to build the project from scratch, so they can use a different version of the library if they so choose. This, in my opinion, would not be closed source. I hope that is clear enough? I did quite a bit of looking around the internet in coming up with this answer, and in the end even some reading of the license, though I'm not sure I've actually read them through in there entirety. Keep in mind that there are multiple version of each license, and you should check version numbers for each LGPL library you use. There is a lot of good information on on opensource.stackexchange, although much more than one can process in a single sitting, and with occasional disagreement on finer points. Below are some related links. gnu.org/licenses/gpl-3.0.txt gnu.org/licenses/lgpl-3.0.txt copyfree.org/content/standard/licenses/2bsd/license.txt opensource.stackexchange.com/questions/1700/are-derivative-works-a-subset... opensource.stackexchange.com/questions/2772/can-this-nvidia-licence-be-us... opensource.stackexchange.com/questions/2488/do-i-need-to-host-qt-source-w... opensource.stackexchange.com/questions/1431/are-there-examples-of-proprie... opensource.stackexchange.com/questions/5162/are-the-terms-of-lgpl-3-0-alr... | By "unlicensed" you mean that it doesn't state a license for use (MIT, GPL, etc.)? Those licenses are just a codified bundle of terms of use that cover many many edge cases. You have in place a much simpler agreement that covers the primary situation: you using/modifying the code for your own use. It's just like borrowing a car. You will ask a friend "hey, could I borrow your car for a bit?" "sure!". You know there's a possibility that you'll get in an accident or something weird will happen, but you think the chances of that are minimal and you would be able to work it out. If you ask a car rental company, they'll give you a full contract covering every situation that may happen. Similarly, a large company would be hesitant to borrow a car for corporate use without a legal framework surrounding it. So you will likely be in the clear if you are just using it for a small project with minimal legal/financial implications. If you plan on turning your project into a multi-billion dollar empire, you should revisit your agreement. | If you want to implement this or a similar feature, you'd look up the patents, and either get a license (unlikely that Microsoft would give you a license), or figure out how to implement the feature without violating the patent. An example how a company I worked for worked around a patent: In order to compress data. in the best possible way, the idea was to try eight different methods to compress the data and pick the best compressed data. There was a patent for that (even though to me, this was quite obvious). Workaround: The software tried eight different methods and reported a number from 1 to 8 indicating which method gave the best result (unlike the patent, which actually gave the best result). Then the data was compressed once using the best method. No patent violation. You'd probably want a patent lawyer to check if your idea how to implement the feature violates the patent or not, and how to get around it. It takes a specific mindset that you and I don't have. And even good lawyers who are not patent lawyers might not be able to help you there. Commercial vs. open source/free software makes no difference, except that Microsoft might not bother suing you if there is no money to be made. Unless the intent is to prevent you from implementing the feature, in which case the would sue companies without money as well. | Rather than saying "for Project®" which might fairly be interpreted to indicate an affiliation with Microsoft, you ought to say something like "intended to be compatible with Project® (not affiliated with or endorsed by Microsoft)." can you imagine a worse scenario than Microsoft sending a Cease and Desist notice? In that case, I can imagine re-branding to "MYBRAND for E-Mail" as the logo/name and a textual reference to "The [MyBrand for E-Mail] Add-In for Microsoft® Outlook®.". What is the worst case scenario? You could be sued by Microsoft for trademark infringement under the Lanham Act and if you lost, forced to change your product name and to destroy all existing inventory, forced to disgorge all profits you have ever made from selling your product ever, forced to pay their attorneys' fees and costs (which won't be cheap) in addition to your own legal team, have your products seized and destroyed when imported by customs agents follow an ex parte court hearing (i.e. one you had no notice of) secretly brought by Microsoft, and forced to pay punitive damages equal to double the profits you made in addition to the profits themselves. You might not even be able to discharge the judgment against you by going bankrupt and the punitive damages would probably not be tax deductible. Microsoft has every right to do this even if you fully comply with their cease and desist letter. A criminal trademark prosecution would be unlikely in this fact pattern. | You are suggesting strict liability for software bugs. You haven't tried to show any negligence or incompetence on Microsoft's part, but just appear to have assumed that the existence of a bug that causes harm should create liability. Strict liability is rare, at least in the US, and does not in general apply to software. Given strict adherence to the best practice in developing software, there will be bugs, so a bug is not itself evidence of any sort of wrongdoing on Microsoft's part. In real life, if there was strict liability for software bugs, nobody and no business would write software for the use of others, because of the ever-present potential of being wiped out by lawsuits despite all they could do. |
If a judge evidences a misunderstanding of the law is that grounds for an appeal? In criminal matters, if a judge makes statements during oral arguments that clearly show that the judge has a misunderstanding of the case law pertaining to the matter at hand, can the judge's decision be appealed even if the written decision itself does not contain an explicit error? For example, let's imagine the police search a car and find an illegal item. The defendant makes a motion to have the evidence from the search suppressed on the grounds that the police had no probable cause to search the vehicle. Whether the police had probable cause in the case is complex issue involving many different facts. Let's imagine that one of these facts is that the police officer stated that the car owner's mechanic told him that the the car's airbag system had been tinkered with, a violation of US Federal regulations. During oral argument the defense argues that the possible violation of a Federal regulation is not grounds for a search. The judge then speaks out and says that violation of a regulation is still a crime and therefore potentially grounds for search. Later, in the written decision, the judge dismisses the motion to suppress, but does not explicitly give his reasons or gives other reasons, not involving the violation of a regulation. So, let's assume for the sake of argument that the judge made an error when he stated that violating a regulation is a "crime" and therefore grounds for local police to search a vehicle. Can the defense argue that even though this error does not appear in written form in the judge's decision, the fact that he said such a thing in court shows that he has a defective and incorrect understanding of laws relevant to the motion, therefore he is not fit to make a ruling on such laws. So, imagine that the appeals court finds that the judge has a clearly defective understanding of search and seizure law as evidences by his remarks in court. What is the outcome? Do they remand the case to the court, reverse the ruling, or take some other action? | Only if counsel challenged the point during the trial Difficult as it might be, you can’t allow the judge to be wrong during the trial without calling them on it: very, very politely. For example, there is case law that says you can’t successfully appeal because the judge was asleep through significant parts of the trial; appeals courts are clear that you have to wake them up. If you don’t then you accepted that you didn’t want the judge to hear the parts of the case they slept through, it’s your choice how you present your case. Frankly some cases are better if the judge misses half the evidence. Of course, if the error of law makes it through to the oral or written judgement then you can appeal even if you didn’t take issue with it. | It is true that in the US, valid Federal law supersedes state law or regulation when there is a conflict. Precisely because of this, state laws and regulations are normally carefully written to avoid such conflicts. It is very unusual for a federal law issue to apply in traffic court. The question does not say what Federal law issue you think will apply to your case. Most issues where Federal law might plausibly affect a state court process, such as a fourth amendment violation on a search and seizure issue, would not apply in traffic court, although they might apply in a criminal court proceeding. Federal law does not generally deal with traffic issues, nor does it preempt state traffic laws, because there is normally no conflict. There is a group of people, who often call themselves "sovereign citizens" who have a habit of making wildly invalid legal claims, and trying to claim that much of the law does not apply to them. Such people often assert elaborate theories about why certain laws do not apply, not infrequently involving the Federal Supremacy Clause. Such claims are invalid, and will not be received well by a court. A claim that one travels by "conveyance" rather than by "car" and thus state laws do not apply is such an invalid claim. The argument made in this answer is such an invalid claim. Chapter 18 of the US code does regulate commercial vehicles to some extent. Therefore in that chapter "motor vehicle" does mean "commercial vehicle" because those federal regulations do not apply to private vehicles. This does not mean that state regulations that apply to private vehicles are preempted or otherwise invalid. If you think a Federal Issue will apply during a traffic court session, it would be wise to consult a lawyer in advance. Many lawyers offer free or low-cost initial consultations. If you think a relevant legal issue is not being addressed, politely, briefly, and clearly explain the issue that you think applies. Do not yell at the judge or other court personnel. Do not try to "make up your own rules". You will be given a chance to indicate your side of the issue. Response to recent edit, and related comments Without a record of the actual court hearing you describe, there is no way to determine if the judge was acting correctly or not. Even with the record there might well be no way to determine what the judge had in mind, or why s/he acted as s/he did. I maintain that any argument that state traffic codes are in fact preempted by federal law, or apply only to commercial vehicles, or that an ordinary personal car is not a "motor vehicle" because of a definition in Blacks or any other dictionary, is legally unsound and frivolous, and could well subject a person who makes it in court to penalties for contempt. A particular judge might not want to bother with the matter, of course. I think i have answered the question as asked, in a way likely to be most helpful to people in general. Others may have other views. | The interpretation of state rules of civil procedure is a matter purely for state courts. Whether a state procedural rule (or even substantive approaches to jurisdiction) violates federal law, including the U.S. Constitution, is a question of federal law, but state courts are still competent to answer such questions that arise in the process of state litigation, subject only to precedent from the Supreme Court of the United States. I may be starting to just repeat things now, but even if the legal issue you're interested in (the extent to which trial courts are divested of jurisdiction during non-frivilous interlocutory appeals in matters controlled by the FAA) is substantive or jurisdictional rather than procedural, Federal circuits do not bind state courts. However, the Supreme Court of the United States can provide binding prcedent on federal law that state courts must apply. I could see the reasons in Coinbase being written broadly enough to apply to both state and federal proceedings. | Conducting an illegal search does not amount to a permanent get out of jail free card ("does that invalidate all evidence against you". What is excluded is evidence derived from that illegal search, regardless of what crime they were searching for. It would include later evidence for an unrelated crime where the probable cause was uncovered by the illegal search. The doctrine is not absolute, so a grand jury can inquire about a matter brought to their attention via an illegal search ("the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons", US v. Calandra). Also, the doctrine excludes the product of a bad faith search without probable cause e.g. where the officer lies about the probable cause. There is also a "social cost" consideration, see Pennsylvania v. Scott. Utah v. Strief establishes three related doctrines. Unlawfully-obtained evidence independently acquired by officers from a source may be admittede. Evidence may be admitted if it would have been discovered without the unconstitutional source. Finally, since the poison fruit doctrine is intended to limit illegal police action, it may be admitted when there is a remote connection between illegal police conduct and gathering of evidence (e.g. the existence of an arrest warrant, discovered after the search). Nothing in your hypothetical points to an exception. The "social costs" consideration was specifically related to "social costs of allowing convicted criminals who violate their parole to remain at large", but the potential for wider application is established (however, it is well-established that evidence of ordinary drug possession is excluded, from the myriad cases of such exclusions over the past century). | Appellate judges make holdings on matters of law, and generally defer to the fact-finder in a given case (the jury, or sometimes the judge) on factual matters relevant to a case. So in a case that involved certain mathematical arguments, they would generally leave it to the jury to decide whether those arguments were reliable. Put simply, Appeals courts don't make binding decisions on issues of fact, only issues of law. | Assuming, pending information about the jurisdiction, that this happened in the US, the answer is it depends. As described in Justia's Vehicular Searches article and Wikipedia's Motor vehicle exception article, Under US law police can search a motor vehicle without a warrant if they have probable cause. This doctrine was first stated by the US Supreme Court in Carroll v. United States 267 U.S. 132 (1925) and later modified or repeated in Husty v. United States, 282 U.S. 694 (1931); Scher v. United States, 305 U.S. 251 (1938); Brinegar v. United States, 338 U.S. 160 (1949). All of these cases involved contraband, but in Chambers v. Maroney, 399 U.S. 42 (1970), the Court broadened the rule to evidentiary searches. See also Coolidge v. New Hampshire, 403 U.S. 443, 458–64 (1971) In Preston v. United States, 376 U.S. 364 (1964) the Court ruled that the search must be reasonably contemporaneous with the stop, so that it was not permissible to remove the vehicle to the station house for a warrant-less search at the convenience of the police. Subsequent cases have widened the scope of the exception, although the probable cause requirement has remained, and stops must have at least "articulable and reasonable suspicion". In the case of an ordinary traffic stop, the police may conduct a Terry-type search, based on "articulable suspicion". However, if the police arrest the driver, that is grounds to search the car under Atwater v. City of Lago Vista, 532 U.S. 318 (2001) and New York v. Belton, 453 U.S. 454 (1981) Under Michigan v. Thomas, 458 U.S.(and Chambers v. Maroney, 399 U.S. 42 (1970); Texas v. White, 423 U.S. 67 (1975); United States v. Ross, 456 U.S. 798, 807 note 9 (1982).) police may remove the car for a search elsewhere if they have probable cause to believe that there is contraband (such as alcohol, drugs, or weapons) in the car. Thus the arrest justified a search, as described in the question. It might not have justified the tow if there was not probable cause to suspect contraband. But that depends on the detailed facts, and judging those is beyond the scope of this site. In Collins vs Virginia (2018) the Court ruled that a warrant-less search of a car parked on the owner's property and within the curtilage was not justified. (The "curtilage" is the area near the house which gets additional Fourth Amendment protection, almost as if it were inside the house). However, in that case no arrest was made at the time of the search, and the search was based on an officer recalling the car having been used to elude arrest some two months previously, not just a few minutes before, so that case may not apply in the situation described above. If there was no probable cause, any evidence found might be subject to suppression, and a suit for damages under sec 1983 might be brought against the officers and the police force, but that would depend on the specific facts, and would in practice require a lawyer skilled in such matters. | In general, ignorance of a law is an excuse only when the law specifically says it is. There are extreme cases where a law has been found invalid because it did not give people enough notice. Actually, only one case I know of -- Lambert v. California, 355 U.S. 225 (1957). The city of Los Angeles passed a law making it illegal for anyone who had ever been convicted of a felony to remain in the city for five days without registering as a felon. Lambert was arrested on suspicion of doing something else, but convicted for being an unregistered felon. The Supreme Court held that it was a violation of Lambert's due process rights to convict her of a crime she had no way of knowing about, or even suspecting. This is a very rare, extreme case, and does not apply to things where people might be expected to suspect that there might be a law. Otherwise, notice of a law is only required if the statute says so; for example, if a speed limit law requires the posting of signs, but the signs aren't posted, the law may not be in effect. However, ignorance still isn't an excuse--if the sign is posted, but you just didn't notice it, you're still on the hook. | Laws are different around the world and you didn't bother to state your location, but typically no- this is not how the system works. What would be the point? There's no defendant. You, the plaintiff would argue against thin air and then what? The court rules in your favour, declares this illegal, and nothing happens because there's no defendant. Is it so you can use this ruling if you find out later? Pretty sneaky. Let's look into how this would actually work. You bring up a case- Jackson vs a mannequin or something. You make your arguments. The defense makes literally no defense. The judge rules in your favour, with a result of nothing as there is no defendent. Next, you find the culprit and bring a case against them. You point out that this is illegal because we came to that decision last week. What's that defendant? An argument against it being illegal? Too bad, the decision has been made. When I posted this answer, it was before the "Nyah, I was ranting about government spying but was deliberately vague- aren't I clever?" comment and I assumed it was against, say, a neighbour but it doesn't really matter. You cannot have a system that makes a judgement without a defendant so it can be applied later. |
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