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Use of ™ on a software name that is not trademarked? I'm making an app for Apple app store and the perfect name for my app is already "used" even though it's not on the app store (this is a thing with app store - when you create an app with a certain name, it cannot be used again, even if the app is not published or deleted). What I'm thinking to use now is the same name but with ™ appended at the end. Could there be any legal problems apart from somebody else trademarking the name? I've seen some people say it is legal to do so but I want a second opinion. | First, "I've seen some people say it is legal to do so but I want a second opinion." This is not a legal opinion. This is only in response to the question "Can you use (TM) on a product that is not Trademarked"? Second, you did not specify a jurisdiction. Since you mentioned Apple, I will assume USA. tl/dr: Yes, you can used the TM mark and no, it is not fraudulent. In the USA, there are three "trademark" symbols, (R), (TM), and (SM). (R) - (Registered) The federal registration symbol. This may be used only once the mark is actually registered in the USPTO. It my not be used while the application is pending. (TM) - (Trademark) / (SM) - (Service Mark) - According to the United States Patent and Trademark Office: If you claim rights to use a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim of a "common-law" mark. No registration is necessary to use a "TM" or "SM" symbol and you may continue to use these symbols even if the USPTO refuses to register your mark. Those symbols put people on notice that you claim rights in the mark, although common law doesn't give you all the rights and benefits of federal registration. | In what way is the mark you made not your acceptance of the contract? It doesn’t matter if it’s your name, or someone else’s name, or an X or the Bluetooth logo or a caricature of Donald Trump. You made it - it’s your signature. | Generally speaking pop-culture references, like literary references, are neither trademark infringement nor copyright infringement. Trademarks Often a referenced item is in fact not a trademark. Most character names, for example, are not protectable as trademarks, because they are not used to identify the product or service, nor to advertise the product or service for sale. Similarly many pop-culture references which are associated with various groups, events, or products are not being used to identify or promote those things, and so are not protectable as trademarks. Even when a reference is (or includes) a trademarked phrase, it is unlikely to be trademark infringement. As long as the user of the trademarked term or phrase is not using it so as to identify the product or service where it is used, is not using it to advertise or promote that product or service, is not using it in such a way as to cause confusion by reasonable people on what the source of the product or service is, and is not using it so as to falsely state or imply that the product ore service is endorsed, sponsore, or approved by the owner of the trademark, then the use is not in fringement. One may use a trademark to identify a related product or service, to indicate compatibility, or to make comparative claims, and that is nominative use (using the mark as the name of the thing marked). Nominative use is specifically not infringement. Copyright Names, taglines, titles, mottos, and other short phrases are not protected by copyright at all. See the US Copyright office Circular 33 -- Works Not Protected by Copyright, where it is stated: Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, , distinctive, or lends itself to a play on words. This circulart includes as exMPLES: The name of a character Catchwords or catchphrases Mottos, slogans, or other short expression As I wrote in https://writing.stackexchange.com/questions/60965/what-are-the-fair-use-rules-in-the-usa-for-short-quotes-from-books-or-song-lyric Literary references, including short quotes, to other works of fiction are commonly allowed as fair use. They are usually appropriately attributed. There are several reasons for this. Such references normally do not serve as a replacement for the original. They normally do not harm the market, actual or potential for the original. And they are often transformative, that is, they re-user has a different purpose and achieves a different effect from the original. All of these factors are important in fair-use decisions, and all lean toward fair use for literary or pop-culture references. In fact, there are few cases to cite on such references, because it is so widely accepted that they would be fair uses that no on ever sues over them. | Yes, they can be. In the example given in the question, there is an additional factor which is that the possibly-infringing company is in a different line of business, which means that it might be possible to use the exact same name without infringing trademark. For example, there are Dove soap and Dove chocolate. (This possibility is probably more remote with a distinctive, novel name such as YouTube.) Trademark protection is supposed to prevent others from confusing consumers. For example, if the graphic design or other branding of the hypothetical youtub were sufficiently similar to that of YouTube that consumers might actually think that YouTube had branched out into the plumbing fixtures industry, then a court would likely find trademark infringement. (Such elements are often protected trademarks in their own right, of course, independent of the world mark; for example, UPS has trademarked "the color brown" in connection with package delivery services.) If a company started using the youtub brand to host and serve digitized video recordings, a finding of infringement is more likely still, even in the absence of other similarities. This would be especially true if it appeared that the name had been chosen explicitly to draw customers from the YouTube site, and that would probably be fairly easy to demonstrate in court. | This is known as nominative fair use. The leading case in the US is New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 306 (9th Cir. 1992). The International Trademark Association (ITA) summarizes: Nominative fair use generally is permissible as long as (1) the product or service in question is not readily identifiable without use of the trademark, (2) only so much of the mark is used as is reasonably necessary to identify the product or service and (3) use of the mark does not suggest sponsorship or endorsement by the trademark owner. The ITA uses iPhone cases as an example of allowable nominative use: Use of “iPhone” in non-stylized form on packaging for phone cases to indicate that it is usable with iPhone 6. Here is an example of that by J.Crew. | The relevant law is trademark law. The basic question is whether the mark is identical or creates an unreasonable risk of confusion with the protected mark. There is no per se 30%-40% rule. I can imagine cases where changing a single letter in a long phrase turns a trademark violation into a parody or clearly different mark (see the Electric Company TV show). I can also imagine cases where changing a large part of the mark could still be infringing and confusingly similar. A parody is protected on fair use grounds in copyright law (which could conceivably come into play since this is a derivative work but would be protected since it is a parody), but in trademark law the issue is that a parody is unlikely to be confused for the original. Of course, at a fine grained level when one is looking at particular cases rather than general ideas, you would have to know which country's laws were involved, for example, where the goods would be sold. | 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. | Your question lacks some details. So you registered a domain name, and later find someone else used that domain name (in the past) for a hobby website? Then no, you don't need to worry about it. If that person has a current trademark on the name used in the domain name, and your website provides/sells products or services in the same area, then you could have a problem. But that doesn't sound like it's the issue. |
Why was an American who overstayed in Singapore not caned? The US citizen Kamari Kenyada Charlton overstayed his visa while in Singapore. The law is that this shall "be punished with caning with not less than 3 strokes". However, according to this story, he was jailed 18 months for his telephone scam and seems to not have received any punishment for overstaying. Why? More background: WSJ, "U.S. Man Faces Caning in Singapore", Oct 20 2010 WaPo, "U.S. citizen faces possible caning in Singapore", Oct 22 2010" Gopalan Nair, "Singapore. One law for some and another for others. The case of American Kamari Kenyada Charlton", Feb 21, 2011 The caning punishment is regularly enforced for overstayers from poor Asian countries (and also any who aid such overstayers): Channel News Asia, "Foreign inmate diagnosed with COVID-19 had arrived on Jan 10, sentenced to jail and caning on Jun 12 for overstaying", 20 Jun 2020 (Sri Lankan) Yahoo News, "Vietnamese man who overstayed in Singapore for over 10 years gets jail, caning", 2 April 2019 The Straits Times, Indonesian gets two years' jail for attempt to sneak overstayer out of Singapore, Jul 8 2016 Today, Man convicted for helping Bangladeshi overstayer: ICA, 28 March 2017 | Plea bargain Probably. Like all common law jurisdictions, Singapore practices plea bargaining. While not formalised as it is in the USA, a prosecutor can agree to drop certain charges and/or not pursue certain sentences in return for a guilty plea to others. As it says in your link, the defendant “pleaded guilty to five charges last week. 17 other charges, including one for overstaying in Singapore, were taken into consideration.” So, he was not convicted of overstaying his visa. | 18 USC 1752: (a) Whoever— (1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so; [...] shall be punished as provided in subsection (b). (b) The punishment for a violation of subsection (a) is— (1) a fine under this title or imprisonment for not more than 10 years, or both, if— (A) the person, during and in relation to the offense, uses or carries a deadly or dangerous weapon or firearm; or (B) the offense results in significant bodily injury as defined by section 2118(e)(3); and (2) a fine under this title or imprisonment for not more than one year, or both, in any other case. (c) In this section— (1) the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area— (A) of the White House or its grounds, or the Vice President’s official residence or its grounds; [...] An ex-president does not have "lawful authority" to occupy the building. They may be not only removed, but also arrested and criminally prosecuted. "Squatter's rights" or other eviction protections would come from the District of Columbia's local laws, over which federal law takes precedence. So they would not apply here. | There is nothing in that contract that says anything about 3 months notice period. The 3 months is the legal default for contracts that do not expire on their own, unlike yours, that has all properties of a limited time contract. I would personally see the detailed description of how you can end this contract as overriding any legal default. But as always, with this specific contract in the original language, you need to see a lawyer to know for sure. Your contract clearly states: you can leave your appartment whenever you want, even before the agreed upon time. If you leave between the 15th and the end of a month, you have to pay for that month in full. If you leave between the 1st and the 14th of the month, you have to pay the fair share of the rent for the days you where there. So for example, on a 30 day month if you lived there for 10 days, you still have to pay a third of the rent and the landlord will return the rest if you paid for the month in advance. If you live there for 16 days, you have to pay for the full month and nothing will be returned if you paid for the month in advance. Please note that you need to "hand over" the vacated rental object during normal business hours. So don't go in there on the evening of the 14th at 16:59. And don't try to "hand it over" when you haven't moved your stuff out yet. At the hand over, you give the keys to the landlord and that is it, it is the last thing you do. Very likely your landlord will want to have a look at the rental object while you are there, so they can make sure it is all in order, you did not damage it or did not leave any of your stuff. Generally speaking, there is nothing your landlord could do to you if you decide to leave early. They cannot make you leave even earlier or any other retaliatory shenanigans you may have heard of in other countries. In Germany, such contracts are not adversarial. You don't need to keep it a secret to the last second. If you know you want to leave on a certain date, inform your land lord, make an appointment for the "hand over" well in advance and save yourself (and them) all the stress from doing things last minute. | When you breach a contract, you can get sued in local court, and if you don't show up to defend yourself, default judgment will be entered against you. Then the aggrieved party will have to collect, but the court in Washington (to invent a jurisdiction) can't enforce an order against a person in Norway (to invent another jurisdiction). So the aggrieved party would need to take enforcement of the judgment to the Norwegian courts. In the actual case of Norway, this is fairly simple, you just call an attorney in Norway to do the paperwork. It might be harder if the other jurisdiction is Belarus. If you return to the US, even if there is a money judgment against you for the rent owed, you will not be arrested for that debt. Depending on the state (about half of the states), you might be arrested for failing to comply with a court order to pay the debt. The difference lies in refusing to comply with a court order, versus simply having a debt. The State Department conveniently lists the reasons for denying a visa. Owing money or having an uncollected judgment against you is not one of the possible reasons, in fact even having been ordered by a court to pay, ignoring the order, and the court issuing an arrest warrant does not make you inadmissible. | too long, didn't read: You would be liable for a claim for breach of contract. The self-isolation guidance is voluntary in this scenario and in any event the relevant legislation allows you to leave to "fulfil a legal obligation" such as completing a contract. Therefore, the court would probably give judgment for the claimant on the facts you've given us. Your requirement to self-isolate The Government guidance for self-isolating on suspicion of, or a positive test for, coronavirus is entirely voluntary. You are only subject to legal obligations to self-isolate, and the associated risk of a £1,000 fine, if you enter England from a non-exempt country under Clause 4 of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020. Therefore, in the given situation, you would not be legally obliged to remain within the property for the entirely of the quarantine period. You would be able to seek alternative accommodation. Indeed, even if you were subject to Clause 4, subclause 9(c) explicitly states: (9) During the period of their self-isolation, P may not leave, or be outside of, the place where P is self-isolating except— (c) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings, Fulfilling the terms of the contract of sale would count as needing to "fulfil a legal obligation" so you would not be fined under the legislation and it would not be a defence to any lawsuit. The court's view Given that the self-isolation guidance is voluntary and, in any event, the relevant legislation has the "legal obligation" escape hatch, the court would likely treat this as a standard breach of contract and find that you had no exceptional circumstances that caused you to breach the contract by failing to vacate the property on the day of completion. Conclusion You would be open to a claim for breach of contract. Your defence would be unlikely to succeed on the merits and the court would likely side with the claimant. | It's not a matter of funding, it's a matter of eligibility for asylum in the UK which appears to be highly unlikely according to reports where 45 recent applications from US citizens were rejected.1 One option is to apply for a Skilled Worker Visa for one of the eligible occupations. The Skilled Worker route enables you to live and work in the UK for up to five years. You can apply for Indefinite Leave to Remain, a form of settled status, after you have lived in the UK for five years under the Skilled Worker Visa. Source As for "Can he legally work such a job with or without permission?", working in the UK without "leave to remain" (i.e. permission) is an offence contrary to section 24B of the Immigration Act 1971 1That said, if the UK and USA governments did come to an arrangement whereby "at least for the short run, they allow his claim to start in the UK" it is impossible to foretell the future and say with any degree of certainty what conditions, requirements, liabilities and demands each side would impose. | As user6726 notes in an answer, the page you link to derives from 26 USC 7701. However, it does not reproduce the text accurately. There, "United States person" is defined at section 7701(a)(30), and it notably lacks anything corresponding to "any other person that is not a foreign person." It's possible that that language is motivated by some court decision, but it's also possible that someone just added it for the sake of symmetry with the definition of "foreign person" without thinking about the logical paradox that it might create. Looking at section 7701, I don't see any explicit mention of US non-citizen nationals. It appears that such a person who does not live in one of the 50 states or the District of Columbia falls under the definition of nonresident alien at 7701(b)(1)(B) even though such a person is explicitly not an alien under the Immigration and Nationality Act. I do not see any regulations correcting this oversight, but I suppose that in practice such people are indeed treated as US citizens. I don't know enough about the classification of nonhuman legal persons as foreign or domestic to have any ideas about whether there are similar ambiguities there. | The victim's country might seek the suspect's extradition from the country of residence. Extradition is a formal law enforcement process whereby the authorities in each country cooperate to hand over the suspect to the victim's country. Whether extradition can take place depends on factors such as: whether it's permitted by the constitution of the country of residence - some constitutions do not permit the extradition of their citizens whether there is an extradition treaty between the two countries (e.g. the US-Canada extradition treaty) or as part of the laws within a supranational body of which the countries are members (e.g. the EU) the outcome of an extradition hearing, if there is one - the suspect might be allowed to appeal against the extradition (and against an adverse decision) whether the government of the country of residence approves or blocks the extradition A case pertinent to your hypothetical is that of Gary McKinnon, a Briton resident in the UK who was accused by the US government of hacking into many military and NASA computers. He was indicted by a federal grand jury and the US sought his extradition from the UK. After a few years of litigation, including appeals to the-then superior court of the UK the House of Lords and the European Court of Human Rights, which on the whole went against him, his extradition was blocked by the-then Home Secretary Theresa May on human rights grounds. A process outside the legal system of the victim's country is extraordinary rendition - although sometimes the government of the suspect's country secretly cooperates. This is state-sponsored kidnapping or abduction - agents of the 'victim' country grab the suspect and move him to that country or some other place. So far as I'm aware, however, it has not been used on hackers - only people suspected of terrorism. There is at least one known case where the person was abducted by mistake. Alternatively the two countries might come to an agreement whereby the person is tried in the country of residence and punished there if convicted. |
Registering a trademark in the UK - Lowercase, title case or uppercase characters? I'm in the process of applying for a UK trademark through the UK government IPO service. I've used the Right Start Examination Service and my application has been approved for the next stage. Before I continue, I wanted to ask whether it makes a difference if a trademark is registered in title case, lowercase or uppercase? I have registered one word mark in title case, like so: My Trade Mark I've read in a few places that registering the trademark in capital letters gives you broader protection, e.g. MY TRADE MARK. | The purpose of trademark law is to enable people and companies to distinguish themselves from the competition. Hence it is illegal to use someone else's trademark, or to use one that is confusingly similar. I would think that merely changing the case on an otherwise distinctive name would be considered "confusingly similar", so it wouldn't matter which case you used. But maybe some court somewhere thought differently. Edit: Perhaps the argument is that by registering "my trade mark", "My Trade Mark" and "MY TRADE MARK" all at once you cover all the bases. Its not that "MY TRADE MARK" gives you broader protection than "My Trade Mark". | According to https://www.gov.uk/renounce-british-nationality/after-youve-applied: After you've applied You’ll get a ‘declaration of renunciation’ if your application is successful. This will be your application form, officially signed and stamped. The date your citizenship or status stops will be shown on the form. | Of course another applicant can use that language. What they can't do is register the same trademark for the same goods or services. If the goods or services protected by a trademark were required to be unique, there'd be no point in having trademarks. Instead, we would have state-sanctioned monopolies. To put it another way, the point of a trademark is to identify the commercial source of particular goods or services. Suppose you sell oranges under the trademark-protected name "Jerzy's oranges," with a goods and services description reading "the sale of oranges." Your registration does not prohibit others from selling oranges; it prohibits them from selling oranges using your name. Any competitor can register a unique trademark to use in the sale of oranges, however, with an identical goods and services description of "the sale of oranges." | Yes, the SFC doesn't allow the usage of the term "git" for third-party products unless they have their permisison. From the Git Trademark Policy, 2.3 Prohibited usages of the Marks: In addition, you may not use any of the Marks as a syllable in a new word or as part of a portmanteau (e.g., "Gitalicious", "Gitpedia") used as a mark for a third-party product or service without Conservancy's written permission. For the avoidance of doubt, this provision applies even to third-party marks that use the Marks as a syllable or as part of a portmanteau to refer to a product or service's use of Git code. | From those articles, it seems that at least some versions of the "Supreme" Logo have been successfully registered. Therefore, any "confusingly similar" logo would be infringement, and could subject anyone using such logos in trade to an infringement suit. And it seems that the owners of the Supreme line are quite willing to sue. It does not, therefore, follow that every possible logo consisting of a red box with white lettering in the Futura font would be an infringement. Similarity depends on the overall effect of a mark, and the main test is the likelihood of confusion or deception of reasonable customers or potential customers. If the text is, say, multiple words, none of which is the word "supreme" or any similar word, then it might arguably be not the Supreme logo, but a different logo that has some similar elements. (If you describe it as "the Supreme logo but" you make your opponent's case for them.) Whether a specific choice of words would be confusingly similar is more specific than this forum can get. You should consult a trademark lawyer for advice on that point. But if in doubt you might want to go with a greater difference. How about a blue box instead of a red one? | Letters patent are instruments issued by the monarch to publicly grant some specific rights to some person(s) with the backing of the royal power. It is also where the word patent (in its intellectual property sense) comes from, since the monopoly of invention was only granted by the authority of the monarch via a letter patent. Another use of the letters patent is to constituting certain offices, particular those exercising the royal power, for example, the Governor General of Canada. Under the British system, the courts are thought to be the monarch exercising their power over the bench. Many High Courts of India were constituted by the British monarch during the colonial rul. The British Parliament allows the monarch to issue letters patent for such purposes in the 1861 High Courts Act. Their jurisdictions were specified by letters patent. One of such jurisdiction is the power for a High Court to hear appeals from the decisions of one of its justices. For example, in the letters patent establishing the High Court in Calcutta: Appeal from the Court a of original jurisdiction to the High Court in its appellate jurisdiction.- And We do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment, in all cases of original Civil jurisdiction, of one or more Judges of the said High Court, or of any Division Court, pursuant to Section 13 of the said recited Act: Provided always that no such appeal shall lie to the High Court as aforesaid from any such decision made by a majority of the full number of Judges of the said High Court, but that the right of appeal in such case shall be to Us, Our heirs or successors, in Our or their Privy Council, in manner hereinafter provided. This clause grants appellate jurisdiction to the High Court over the High Court itself when the court makes a decision in its original jurisdiction (unless the decision was already made by the majority of the court's judges). Of course, India can establish its own courts now and the power comes from the Constitution (in particular arts. 226 and 227) instead of the monarch personally, although some letters patent remain legally in force. The Indian Parliament now regulates the High Courts according to the Constitution. But the term letters patent appeal remained, because the appellate jurisdiction came from the letters patent. | When you put a logo that is a legally recognized trademark or servicemark in an acknowledgements section of a document, you are not infringing on the mark. A mark if infringed by someone using it when it is used in a manner that falsely communicates an affiliation with, or an endorsement of, the mark owner of the type of good or service that is protected by the mark. Using a mark in an acknowledgment section doesn't communicate this message (unless, of course, the acknowledgement section falsely says otherwise, which it wouldn't in the case posed by the question). Instead, this use is what is called "nominative use", and this use also expressly acknowledges and reaffirms that someone else owns the mark and has not licensed it to the author of the work containing the acknowledgement. So, this use of these logos does not infringe on the trademarks or servicemarks that protect these logos. | To determine whether an attorney is licensed to practice in a specific jurisdiction, you need to look up that attorney in the bar that applies to that jurisdiction. Some attorneys do not allow their information to be posted on the online lookup, in that case you would have to call the bar to confirm that s/he is licensed. I assumed you meant more than "case" in the legal sense above. For instance, if you want a Patent, you would need someone licensed to the Pat Bar. Cases they have worked on: You can use Google Scholar and select Case Law / the Jurisdiction you are concerned with and search for their name exactly (I would also limit the time frame.) The attorneys for each side are listed at the top. Some of the large cases have multiple pages of attorneys with their name on the case. Alternatively, if you have a subscription service to WestLaw Next, Bloomberg Law, or LexisNexis you can lookup the attorney and see case information as well, as well as court documents they have submitted in various cases - this allows you to get a glimpse of their writing style. Alternatively, you can visit your local law school's law library and, if they have public access, use the public terminals (at least my law school has these.). |
Can a leasor defer signing the lease agreement until the lessee actually moves in? I have just signed a new lease. The leasing agent says they countersign my lease after I move in. I still have a few days before I move in. Is this common/legal? Does it not expose the lessee to some risk? | In any legal dealing, there is always some risk. The signature constitutes definitive proof that you have a contract, but you still have a contract, because you have mutual acceptance. A far-fetched scenario is that the lessor could allege that they did not agree to the terms of he contract with you (perhaps claiming that you obtained a blank contract form from them and filled in details, but they didn't agree to those details). However, if they allow you to move in, that is sufficient constructive evidence of a contract, so they could not argue "We didn't agree to this". The main risk would be your lack of proof that they ever agreed to lease the place to you (no emails, no texts, no witnesses, no legally-recorded conversations). There may be specific state laws about providing a copy of the rental agreement, such as this California law, where they must provide a copy to the tenant within 15 days of execution by the tenant. This provides a collection of relevant state laws, though you may have to dig a bit because this is a hook into all of the laws about leases and not just about providing copies. | You agreed to pay these fees when you applied for the apartment, so unless they explicitly say that one or both of these fees is waived in case you don't take the apartment (virtually no chance that they said such a thing), you owe that money. Your obligation is not contingent on them convincing you that the fee is just, so it doesn't matter that they won't explain the difference. However, if they said you can pay electronically, then you can pay electronically, since that too is part of the agreement. | Close family members can stay as long as the tenant wants The tenant is entitled to "quiet enjoyment" of the property which includes living with their close relatives - spouse, de facto and children would all qualify; parents and siblings might as well. It doesn't matter if these people are children or adults. You cannot contract out of this as you are not allowed to discriminate in housing based on family situation. The tenant is also entitled to have non-relative house guests stay for as long as is reasonable. A month or so would be reasonable; longer than that and it starts to look like a sub-lease for which they would need your permission. There is generally a limit under texas law of 3 adults per bedroom but that doesn't seem to be an issue here. I also can't see where having a non-resident's mail delivered to the property is something you have a say about. I'd be very careful if I were you because it seems like you are on the wrong side of the law here. | In most common law jurisdictions, yes. The new owner would be bound by the lease just as the old owner was. | No All parties must agree to change a contract. On the face of it, the New Tenant has to be “acceptable to both the Landlord and the remaining individual or individuals comprising the Tenant (the Remaining Tenant)”. It goes on to describe what the landlord may consider in making this assessment; there is no such imposition on the Remaining Tenant. However, there is implicit in a contract a requirement that the parties must act reasonably when using discretion. If Remaining Tenant repeatedly rejects every proposed New Tenant then this raises the question of if they are acting reasonably. Have you clearly articulated why the proposed replacements are unacceptable and are those reasonable reasons? | My answer would be different if either Alice or Bob was the landlord, or the landlord had a separate agreement with Alice and Bob. If a single lease is written, per the comment, that Alice and Bob are components of "the tenants", and "the tenants" have rented the named premises, then they all have equal rights to occupy the whole premises under the lease. If the landlord is professional I will further presume they all have joint and several liability for the whole rent; it would be inequitable to alienate Alice with joint and several liability from any part of the premises without her consent. If there is a separate roommate agreement that allocates rooms and expected share of rent or controls behaviors, then that is a contract that can form as a meeting of the minds of the roommates where they each trade something of value, such as exclusive use of a room. The narrative suggests an original verbal agreement that Bob would like to change. That's nice but Alice doesn't have to agree; or can agree with other changes of value to her such as the ratio of expected rent reflecting the ratio of use and access to the space Alice would have. | No they can't. The lease says the premises need to be cleaned without going into details how. You cleaned them yourself before moving out. If the landlord was not happy with that, they should have raised their concerns and discussed options. The security deposit that the landlord holds is only supposed to be used when something goes wrong. When something goes wrong, the landlord is supposed to talk, not to silently chop off a slice of the deposit as they please (unless the lease allows it, which it does not here). If the landlord refuses to refund, read the manual and go to small claims court to tell them where to get off. | 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. |
Can a man have invasive medical procedures forced on him during a paternity dispute? If a woman has a man's child and does not acknowledge him as the father, can she later force the man to give blood as to prove him the father (If she for instance decides his money is good enough again). What if the man has Trypanophobia, will that change anything? | She can't force him, but the court can. This would be a court ordered paternity test. If one parent can't give blood for some reason they could do something else like a cheek swab. | Overview of Notice Requirements To Fathers Prior To Adoption In Illinois The father has some rights, but they are very limited in Illinois under the kind of circumstances set forth in the ER dialog. If the mother wants to put up the child for adoption and doesn't want to reveal anything about the father, perhaps with the specific intent of preventing him from interfering with the adoption, she has the practical ability to do so without penalty. In practice, either an "involved father", or spouse who theoretically could be the father during the course of a marriage, is very likely to receive notice of an adoption and to be required to consent to it, unless parental rights have been terminated or the father raped the mother. But, this isn't the kind of situation present in the ER dialog. But, an "uninvolved father" (even if uninvolved through no fault of his own because he doesn't know that he has gotten the mother pregnant, for example) is entitled only to a registered letter to his last known address and mention in a newspaper legal classified advertisement, generally as provided by the mother if she chooses to cooperate in providing accurate information. He has really no recourse if he isn't given the notice he is entitled to under the statute. His pretty much exclusive remedy is to go through the hoops of the Putative Father Registry and then to file a paternity action in court, on very tight timelines, which he has probably never heard of and is in practice incapable of managing to comply with 95%+ of the time. Unless he was voluntarily and accurately put on the birth certificate by the mother, an "uninvolved father" has a very decent chance of getting no notice at all and not being able to do anything about it even if he later learns of the child's existence, unless the mother is clear that he is the father and acts with more good faith towards him in the notice process than is commonplace. There are criminal penalties for providing false information about the father, but if the petition is brought by someone other than the mother (as is usually the case) the mother faces no penalties for failing to be forthright on the birth certificate or in cooperating with the people who are filing the adoption petition. She generally need only sign a surrender of the child. She may or may not make any statements under oath or penalty of perjury, depending upon the way the relevant statute is interpreted and there are ways she can avoid much exposure to criminal liability in answering vaguely or inaccurately or claiming not to know. So, a mother has a practical ability to put her child up for adoption without the involvement of an "uninvolved father" without any real penalty for doing so, although there is at least a moral expectation that she will be forthright with the people handling the adoption process when they make an effort to get information about the father. Unless the father is informed by someone that the mother is pregnant, and he knows which state the mother will give birth to the child in or move to in order to conduct the adoption in, and he is aware of the tough requirements of the putative father's registry, the father has no real reason to know that he has to do anything to prevent his child from being adopted, unless the mother provides his accurate name and address to the people prepare the adoption papers. He has no real clear and obvious way to learn what he has to do in order to prevent an adoption from going through, and is very likely to think he is entitled to more notice than he actually is, and thus to be less pro-active that he needs to be to preserve his paternity rights. If he's lucky, he could also get notice through a newspaper legal advertisement publications that someone who cares about him (he almost surely doesn't read them) could see - but even if he learns by publication he may have a hard time taking the acts required to give him the right to deny consent to an adoption in time for it to matter legally. The process is also very unforgiving towards fathers who change their minds, even if they change their minds before the legal adoption process is over. Generally speaking, a father has no right to have an attorney appointed for him in a case where he is trying to assert his paternity if he is unable to afford one himself. In addition to the requirements of Illinois law set forth below, there is also generally a requirement to affirmatively state in adoption proceeding if the father is, or might be, a member of a Native American tribe, as that goes to the jurisdictional issue of the applicability of the federal Indian Child Welfare Act, which requires notice, at a minimum, to the father's Indian tribe, even if notice cannot be given to the father. The Relevant Laws With regard to Illinois adoption laws there are a couple of statutes that are relevant: A Petition for adoption must state under oath per § 750 ILCS 50/5(f) (line breaks inserted editorially for ease of readability in this online format and not present in the original): The names, if known, and the place of residence, if known, of the parents; and whether such parents are minors, or otherwise under any legal disability. The names and addresses of the parents shall be omitted and they shall not be made parties defendant to the petition if (1) the rights of the parents have been terminated by a court of competent jurisdiction, or (2) the child has been surrendered to an agency, or (3) the parent or parents have been served with the notice provided in Section 12a of this Act and said parent or parents have filed a disclaimer of paternity as therein provided or have failed to file such declaration of paternity or a request for notice as provided in said Section, or (4) the parent is a putative father or legal father of the child who has waived his parental rights by signing a waiver as provided in subsection S of Section 10; . . . Whatever orders, judgments or decrees have heretofore been entered by any court affecting (1) adoption or custody of the child, or (2) the adoptive, custodial or parental rights of either petitioner, including the prior denial of any petition for adoption pertaining to such child, or to the petitioners, or either of them. I've omitted provisions related to children with no living parents which involve notice to guardians and next of kin, and provisions related to "standby adoption" which is also beyond the scope of this question. Surrender to an agency is basically putting a child up for adoption before adoptive parents are lined up, and otherwise involves the same surrender or waiver process. Notice requirements per § 750 ILCS 50/7 are as follows (emphasis and line breaks added): A. All persons named in the petition for adoption or standby adoption, other than the petitioners and any party who has previously either denied being a parent pursuant to Section 12a of this Act or whose rights have been terminated pursuant to Section 12a of this Act, but including the person sought to be adopted, shall be made parties defendant by name, and if the name or names of any such persons are alleged in the petition to be unknown such persons shall be made parties defendant under the name and style of "All whom it may concern". In all such actions petitioner or his attorney shall file, at the office of the clerk of the court in which the action is pending, an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending. . . . In the event there is service on any of the parties by publication, the publication shall contain notice of pendency of the action, the name of the person to be adopted and the name of the parties to be served by publication, and the date on or after which default may be entered against such parties. . . . B. A minor defendant who has been served in accordance with this Section may be defaulted in the same manner as any other defendant. C. Notwithstanding any inconsistent provision of this or any other law, and in addition to the notice requirements of any law pertaining to persons other than those specified in this subsection, the persons entitled to notice that a petition has been filed under Section 5 of this Act shall include: (a) any person adjudicated by a court in this State to be the father of the child; (b) any person adjudicated by a court of another state or territory of the United States to be the father of the child, when a certified copy of the court order has been filed with the Putative Father Registry under Section 12.1 of this Act; (c) any person who at the time of the filing of the petition is registered in the Putative Father Registry under Section 12.1 of this Act as the putative father of the child; (d) any person who is recorded on the child's birth certificate as the child's father; (e) any person who is openly living with the child or the child's mother at the time the proceeding is initiated and who is holding himself out to be the child's father; (f) any person who has been identified as the child's father by the mother in a written, sworn statement, including an Affidavit of Identification as specified under Section 11 of this Act; (g) any person who was married to the child's mother on the date of the child's birth or within 300 days prior to the child's birth. The sole purpose of notice under this Section shall be to enable the person receiving notice to appear in the adoption proceedings to present evidence to the court relevant to whether the consent or surrender of the person to the adoption is required pursuant to Section 8 of this Act. If the court determines that the consent or surrender of the person is not required pursuant to Section 8, then the person shall not be entitled to participate in the proceedings or to any further notice of the proceedings. and § 750 ILCS 50/12a. Notice to putative father Upon the written request to any Clerk of any Circuit Court . . . a notice, the declaration of paternity and the disclaimer of paternity may be served on a putative father in the same manner as Summons is served in other civil proceedings, or, in lieu of personal service, service may be made as follows: . . . The Clerk shall forthwith mail to the putative father, at the address appearing in the Affidavit, the copy of the notice, the declaration of paternity and the disclaimer of paternity, by certified mail, return receipt requested; Consent requirements are as follows (line breaks added editorially, provisions for cases where there is a surrender to an agency and then a later adoption rather than a direct adoption, which are substantially similar, are also omitted): § 750 ILCS 50/8. Consents to adoption and surrenders for purposes of adoption (a) Except as hereinafter provided in this Section consents or surrenders shall be required in all cases, unless the person whose consent or surrender would otherwise be required shall be found by the court: (1) to be an unfit person as defined in Section 1 of this Act, by clear and convincing evidence; or (2) not to be the biological or adoptive father of the child; or (3) to have waived his parental rights to the child under Section 12a or 12.1 or subsection S of Section 10 of this Act; or (4) to be the parent of an adult sought to be adopted; or (5) to be the father of the child as a result of criminal sexual abuse or assault as defined under Article 11 of the Criminal Code of 2012; or (6) to be the father of a child who: (i) is a family member of the mother of the child, and the mother is under the age of 18 at the time of the child's conception; for purposes of this subsection, a "family member" is a parent, step-parent, grandparent, step-grandparent, sibling, or cousin of the first degree, whether by whole blood, half-blood, or adoption, as well as a person age 18 or over at the time of the child's conception who has resided in the household with the mother continuously for at least one year; or (ii) is at least 5 years older than the child's mother, and the mother was under the age of 17 at the time of the child's conception, unless the mother and father voluntarily acknowledge the father's paternity of the child by marrying or by establishing the father's paternity by consent of the parties pursuant to the Illinois Parentage Act of 2015 or pursuant to a substantially similar statute in another state. A criminal conviction of any offense pursuant to Section 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-1.70, 12C-5, 12C-10, 12C-35, 12C-40, 12C-45, 18-6, 19-6, or Article 12 of the Criminal Code of 1961 or the Criminal Code of 2012 is not required. (b) Where consents are required in the case of an adoption of a minor child, the consents of the following persons shall be sufficient: (1) (A) The mother of the minor child; and (B) The father of the minor child, if the father: (i) was married to the mother on the date of birth of the child or within 300 days before the birth of the child, except for a husband or former husband who has been found by a court of competent jurisdiction not to be the biological father of the child; or (ii) is the father of the child under a judgment for adoption, an order of parentage, or an acknowledgment of parentage or paternity pursuant to subsection (a) of Section 5 of the Illinois Parentage Act of 1984 or pursuant to Article 3 of the Illinois Parentage Act of 2015; or (iii) in the case of a child placed with the adopting parents less than 6 months after birth, openly lived with the child, the child's biological mother, or both, and held himself out to be the child's biological father during the first 30 days following the birth of the child; or (iv) in the case of a child placed with the adopting parents less than 6 months after birth, made a good faith effort to pay a reasonable amount of the expenses related to the birth of the child and to provide a reasonable amount for the financial support of the child before the expiration of 30 days following the birth of the child, provided that the court may consider in its determination all relevant circumstances, including the financial condition of both biological parents; or (v) in the case of a child placed with the adopting parents more than 6 months after birth, has maintained substantial and continuous or repeated contact with the child as manifested by: (I) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either (II) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (III) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child. The subjective intent of the father, whether expressed or otherwise unsupported by evidence of acts specified in this sub-paragraph as manifesting such intent, shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child; or (vi) in the case of a child placed with the adopting parents more than six months after birth, openly lived with the child for a period of six months within the one year period immediately preceding the placement of the child for adoption and openly held himself out to be the father of the child; or (vii) has timely registered with Putative Father Registry, as provided in Section 12.1 of this Act, and prior to the expiration of 30 days from the date of such registration, commenced legal proceedings to establish paternity under the Illinois Parentage Act of 1984, under the Illinois Parentage Act of 2015, or under the law of the jurisdiction of the child's birth; or . . . (4) Any person or agency having legal custody of a child by court order if the parental rights of the parents have been judicially terminated, and the court having jurisdiction of the guardianship of the child has authorized the consent to the adoption; or (5) The execution and verification of the petition by any petitioner who is also a parent of the child sought to be adopted shall be sufficient evidence of such parent's consent to the adoption. There are rules governing when a parent may consent to adoption: § 750 ILCS 50/9. Time for signing a waiver, consent, or surrender A. A consent or a surrender signed not less than 72 hours after the birth of the child is irrevocable except as provided in Section 11 of this Act. B. No consent or surrender shall be signed within the 72 hour period immediately following the birth of the child. C. A consent or a surrender may be signed by the father prior to the birth of the child. Such consent or surrender shall be revoked if, within 72 hours after the birth of the child, the father who gave such consent or surrender, notifies in writing the person, agency or court representative who acknowledged the surrender or consent or any individual representing or connected with such person, agency or court representative of the revocation of the consent or surrender. D. Any consent or surrender signed in accordance with paragraph C above which is not revoked within 72 hours after the birth of the child is irrevocable except as provided in Section 11 of this Act. . . . F. A waiver as provided in subsection S of Section 10 of this Act may be signed by a putative father or legal father of the child at any time prior to or after the birth of the child. A waiver is irrevocable except as provided in Section 11 of this Act. Consents and waivers have to follow a standard form with warnings in it set forth in Section 10 of the Act. An Affidavit of Identification by the mother has legal effect is she executes it as set forth in the section below, but it is optional and other forms of due diligence are permitted: § 750 ILCS 50/11. Consents, surrenders, waivers, irrevocability (a) A consent to adoption or standby adoption by a parent, including a minor, executed and acknowledged in accordance with the provisions of Section 10 of this Act, or a surrender of a child by a parent, including a minor, to an agency for the purpose of adoption shall be irrevocable unless it shall have been obtained by fraud or duress on the part of the person before whom such consent, surrender, or other document equivalent to a surrender is acknowledged pursuant to the provisions of Section 10 of this Act or on the part of the adopting parents or their agents and a court of competent jurisdiction shall so find. No action to void or revoke a consent to or surrender for adoption, including an action based on fraud or duress, may be commenced after 12 months from the date the consent or surrender was executed. The consent or surrender of a parent who is a minor shall not be voidable because of such minority. (a-1) A waiver signed by a putative or legal father, including a minor, executed and acknowledged in accordance with Section 10 of this Act, shall be irrevocable unless it shall have been obtained by fraud or duress on the part of the adopting parents or their agents and a court of competent jurisdiction shall so find. No action to void a waiver may be commenced after 12 months from the date the waiver was executed. The waiver of a putative or legal father who is a minor shall not be voidable because of such minority. (b) The petitioners in an adoption proceeding are entitled to rely upon a sworn statement of the biological mother of the child to be adopted identifying the father of her child. The affidavit shall be conclusive evidence as to the biological mother regarding the facts stated therein, and shall create a rebuttable presumption of truth as to the biological father only. Except as provided in Section 11 of this Act, the biological mother of the child shall be permanently barred from attacking the proceeding thereafter. The biological mother shall execute such affidavit in writing and under oath. The affidavit shall be executed by the biological mother before or at the time of execution of the consent or surrender, and shall be retained by the court and be a part of the Court's files. One could read the language above as requiring an Affidavit of Identification, but there is also a fair reading of it that states that it is only one possible means of many to determine who is entitled to notice. In other words "shall execute" could mean that if you execute it at all, it must be in writing and under oath. The "shall be executed by the biological mother before or at the time of execution of the consent or surrender" language seems more firm, but in practice, even if she does sign it under oath, if she simply says "I don't know" there is really no way that anyone can prove anything different in a way that would stick and criminal perjury convictions, in practice, are almost completely non-existent. The Putative Father registry is subject to the following rules: § 750 ILCS 50/12.1. Putative Father Registry The Department of Children and Family Services shall establish a Putative Father Registry for the purpose of determining the identity and location of a putative father of a minor child who is, or is expected to be, the subject of an adoption proceeding, in order to provide notice of such proceeding to the putative father. . . . (a) The Department shall maintain the following information in the Registry: (1) With respect to the putative father: (i) Name, including any other names by which the putative father may be known and that he may provide to the Registry; (ii)Address at which he may be served with notice of a petition under this Act, including any change of address; (iii) Social Security Number; (iv)Date of birth; and (v) If applicable, a certified copy of an order by a court of this State or of another state or territory of the United States adjudicating the putative father to be the father of the child. (2) With respect to the mother of the child: (i) Name, including all other names known to the putative father by which the mother may be known; (ii) If known to the putative father, her last address; (iii)Social Security Number; and (iv)Date of birth. (3) If known to the putative father, the name, gender, place of birth, and date of birth or anticipated date of birth of the child. (4) The date that the Department received the putative father's registration. . . . (b) A putative father may register with the Department before the birth of the child but shall register no later than 30 days after the birth of the child. All registrations shall be in writing and signed by the putative father. No fee shall be charged for the initial registration. The Department shall have no independent obligation to gather the information to be maintained. (c) An interested party, including persons intending to adopt a child, a child welfare agency with whom the mother has placed or has given written notice of her intention to place a child for adoption, the mother of the child, or an attorney representing an interested party may request that the Department search the Registry to determine whether a putative father is registered in relation to a child who is or may be the subject to an adoption petition. . . . (d) A search of the Registry may be proven by the production of a certified copy of the registration form, or by the certified statement of the administrator of the Registry that after a search, no registration of a putative father in relation to a child who is or may be the subject of an adoption petition could be located. (e) Except as otherwise provided, information contained within the Registry is confidential and shall not be published or open to public inspection. (f) A person who knowingly or intentionally registers false information under this Section commits a Class B misdemeanor. A person who knowingly or intentionally releases confidential information in violation of this Section commits a Class B misdemeanor. (g) Except as provided in subsections (b) or (c) of Section 8 of this Act, a putative father who fails to register with the Putative Father Registry as provided in this Section is barred from thereafter bringing or maintaining any action to assert any interest in the child, unless he proves by clear and convincing evidence that: (1) it was not possible for him to register within the period of time specified in subsection (b) of this Section; and (2) his failure to register was through no fault of his own; and (3) he registered within 10 days after it became possible for him to file. A lack of knowledge of the pregnancy or birth is not an acceptable reason for failure to register. (h) Except as provided in subsection (b) or (c) of Section 8 of this Act, failure to timely register with the Putative Father Registry (i) shall be deemed to be a waiver and surrender of any right to notice of any hearing in any judicial proceeding for the adoption of the child, and the consent or surrender of that person to the adoption of the child is not required, and (ii) shall constitute an abandonment of the child and shall be prima facie evidence of sufficient grounds to support termination of such father's parental rights under this Act. (i) In any adoption proceeding pertaining to a child born out of wedlock, if there is no showing that a putative father has executed a consent or surrender or waived his rights regarding the proposed adoption, certification as specified in subsection (d) shall be filed with the court prior to entry of a final judgment order of adoption. (j) The Registry shall not be used to notify a putative father who is the father of a child as a result of criminal sexual abuse or assault as defined under Article 11 of the Criminal Code of 2012. This is limited by two other main provisions: § 750 ILCS 50/20b. Time limit for relief from final judgment or order A petition for relief from a final order or judgment entered in a proceeding under this Act, after 30 days from the entry thereof under the provisions of Sec. 2-1401 of the Code of Civil Procedure or otherwise, must be filed not later than one year after the entry of the order or judgment. and Illinois Compiled Statutes Rights and Remedies Chapter 750. Families Act 55. Contest of Adoptions Act Current through P.A. 99-0919 (2015-2016) § 750 ILCS 55/1. No attack upon or proceedings contesting the validity of an adoption decree heretofore entered shall be made either directly or collaterally because of the failure to serve notice on or give notice to the reputed father, unless such attack or proceedings shall be instituted within one year after the effective date of this Act. (The effective date was in 1949.) | PIPA has a dispute resolution process. See page 39 of the guidance document. The judge in your current case may have the power to award you damages under PIPA, but most likely not. You are probably best served by using the information as evidence that the guy is a bad person, has little regard for the laws, openly defied PIPA, etc. However, if he's smart he will say that you consented. Look at pages 5 and 6 of that document that you linked to. Unless you protested when you handed him your license and watched him photograph it, it's hard for you to say that you did not provide implied or verbal consent. This is especially true when coupled with the PIPA dispute resolution which start with you attempting to resolve this issue before filing a complaint. In summary, it might help you demonstrate a pattern of bad behavior but your current legal dispute is not the place to resolve your privacy issue. | The primary question is whether remaining silent would constitute a breech of medical ethics. The pertinent ethical principle is AMA Opinion 2.15 One of the requirements is that the donor be assigned an advocate team whose interest is the donor, not the patient, and these should generally be distinct individuals in order to avoid conflict of interest. Assuming that the donor's team is aware of this fact, they have a duty to disclose it, since it materially affects the donor's willingness to donate the organ. The ethical opinion does not specifically address "patient breaking up with a directed donor", but there is a general obligation to share information, and it would probably be found to be a breach of medical ethics to suppress relevant non-medical information. The ethics of directed donation from live donors is not well-developed. I will mention that Potential donors must be informed that they may withdraw from donation at any time before undergoing the operation and that, should this occur, the health care team is committed to protect the potential donor from pressures to reveal the reasons for withdrawal. If the potential donor withdraws, the health care team should report simply that the individual was unsuitable for donation. From the outset, all involved parties must agree that the reasons why any potential donor does not donate will remain confidential for the potential donor’s protection. In situations of paired, domino, or chain donation withdrawal must still be permitted. Physicians should make special efforts to present a clear and comprehensive description of the commitment being made by the donor and the implications for other parties to the paired donation during the informed consent process. Neither team can tell the patient that the reason the girlfriend withdrew was because they ratted him out (anyhow, we can suppose she said something to him on her own). The hospital knows this fact, and has both a duty to the patient to solve a medical problem but also to the donor to be sure that the consent is informed. The hospital would be suppressing a fact relevant to the donor's willingness to undergo the operation, which is a breach of duty. This fact is not protected by HIPAA, or any other California statute, so does not supersede the obligation to reveal relevant facts. | Police can lie However, in the United States they have to read you your Miranda warning (most other democratic countries have similar warnings): You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. They have told you everything they are required to tell you - effectively “we are not on your side.” After that, they can lie their asses off. Of course, they wouldn’t ask you for a DNA sample - they’d ask you if you’d like a glass of water. Then they’ll take the DNA from that. | This is indeed an area of law where the answer does depend on the jurisdiction. As a 2015 article on the subject noted (and I am loathe to refer to less current sources as this is a rapidly changing area): The United States has no national laws or regulations governing assisted reproduction. However, many states have piecemeal legislation. Some aspects are regulated, while others are not; some states have strict laws or regulations whereas others are looser. As a 2017 American Bar Association article with citations notes, this isn't entirely true. There are some national laws that apply, but they aren't comprehensive and probably don't control the situation described in the OP. It also notes that: Certain states, like California, have created a legislative environment supportive of surrogacy by providing for the validity and enforcement of commercial surrogacy agreements and enacting legislation to define the resulting nontraditional parental relationships.10 Others, like New York, explicitly prohibit commercial surrogate parenting contracts,11 requiring most residents and potential surrogates in the state to seek desirable surrogacy arrangements in other states. However, so many aspects of ART are simply not addressed by the states:12 there is no state regulation of the number of children that may be conceived by an individual donor, no rules regarding the types of medical information and updates that must be supplied by young donors as they age, no standards regarding genetic testing on embryos, no limits on the age of donors, and virtually no regulation of the gametic13 material market. (Gametic material means sperm and eggs.) The American Bar Association has more resources on related issues here. A 2014 article surveyed the issue broadly. Colorado has a law that permits arrangements like these and makes them enforceable if the formalities of the statute are followed. It is not easy to figure out exactly which states do and do not allow this because: (1) there is a model act to authorize this but many states that allow it crafted their own legislation rather than following the model act (Article 6 of the Model Act is the part relevant to the OP), and (2) some states have allowed this kind of arrangement via case law rather than statutory law. There are also states with no statutes on the subject and no clear case law one way or the other. As of 2010 all but a handful of states had some kind of legislation, but as noted above, some of that legislation disallowed rather than authorized certain practices or only address some issues and not others. This article reviews in detail the facts and rulings in several cases that are on point to this issue, for example, from California, Minnesota and Montana. | This generally requires a court order (everything depends on jurisdiction: this is a state matter, not a federal matter). As a minor, the courts could allow your parents to change from Dweezil to William without involving you, until you are old enough that the judge thinks you might be able to have reasonable input into the matter. Once you're over 18, your parents can't change your name – you would have to do that, at least if you are mentally competent. In Washington, the courts juggle the wishes of the child, the wishes of the parents, how long the child has had the name, and the social advantages or disadvantages of the name change, and permission from the minor is required if over 14 (child input would be solicited for a child over 7). Since this involves a court order, in principle this information is available to the child. In cases involving domestic violence, the records could be sealed. A name can be changed by changing the birth certificate which means filling out a form and paying a fee, and if the child is under 1 year old, it just requires the signatures of the parents (or, a court order). This "under 1" paperwork approach seems to be widespread (Colorado, New York, others). Also bear in mind that the initial filing of a birth certificate may well not have a child's name, which may not be supplied until the parents make up their minds. Changes to the birth certificate are knowable (they don't erase anything), but can only be revealed to the subject of the record, or in case of court order. Thus a change should be discernible, if other states are like Washington. | Child support arrangements can be negotiated by the parties, however, approval of the court is required to make them binding. Courts will reject arrangements that deviate too far from what a court would impose. |
Why does the US law sometimes mention numbers in both digits and letters? Why does the US law sometimes mention numbers in both digits and letters? E.g. https://www.govinfo.gov/content/pkg/CFR-2012-title8-vol1/pdf/CFR-2012-title8-vol1-sec316-5.pdf: Absences from the United States for continuous periods of between six (6) months and one (1) year during the periods for which continuous residence is required under §316.2 (a)(3) and (a)(6) shall disrupt the continuity of such residence for purposes of this part unless the applicant can establish otherwise to the satisfaction of the Service. Typically people don't write the same info twice. | This is very common in all sorts of legal documents, not just the United States Code. Another familiar example where this is seen is on checks. It serves as a sort of "redundancy check", to help catch errors where either the words or the numerals could have been incorrectly transcribed. Of course, one could ask why similar redundancy isn't used to avoid errors in other contexts; there doesn't seem to be a good answer for this besides "tradition". Some people feel the practice is obsolete and should be abandoned, e.g. https://www.butlersnow.com/2020/04/five-5-reasons-to-stop-writing-numbers-like-this/. | A typo in a contract does not ever void the contract. If the typo changes the meaning of the contract from what was actually intended, then it is up to a judge to interpret the contract and whether it is reasonable that a person would assume its intended meaning. In your example, it is obvious that the word "least" was meant to be there and not "lease" - as the alternate word makes no sense in context - so a judge would not void the contract or release you from your 30 day obligation (which is probably even granted to the landlord by local laws regardless of whether it was stated in the contract). Even misspellings of people's names or addresses on a lease do not void a contract if you have already paid or taken up residence. If any of these situations were brought to court, the judge would just amend the contract to a corrected version that would then serve as the contract between the two parties, replacing the version with the typo. This is known as contract reformation. | Underscores are often used to indicate that the particular case has not yet been assigned to a specific volume (preceding the reporter abbreviation) or page (following the reporter abbreviation). In your example, the case will appear in volume 576, but the exact page has not yet been determined. | On a check, if the two amounts do not match, the written out amount should be considered correct. Section 3.114 of the Uniform Commercial Code states that: If an instrument contains contradictory terms, typewritten terms prevail over printed terms, handwritten terms prevail over both, and words prevail over numbers. So, you simply accept the check for the written out amount. DO NOT make changes to the document because that is fraudulent. If the amounts do not agree, you can't pick which one you want to use - you must use the written amount. If the written amount is incorrect, your only choice is to reject the check or accept it for the written amount (and bill for or refund the difference). | Yes 15 USC 1501, which is part of the Lanham Act, the basic US trademark law, provides in subsection (a)(2) that: (2) The application [for registration of a trademark] shall include specification of the applicant’s domicile and citizenship, the date of the applicant’s first use of the mark, the date of the applicant’s first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark. This clearly implies that the applicant may have a citizenship other than US, or else ther ewould be nbo point in specifying the citizenship in the application. subsection (e) of the same section provides, in relevant part: If the applicant is not domiciled in the United States the applicant may designate, by a document filed in the United States Patent and Trademark Office, the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark. This makes it cleat that an applicant need not be resident in the US., 15 USC 1141a provides that: (a) In general The owner of a basic application pending before the United States Patent and Trademark Office, or the owner of a basic registration granted by the United States Patent and Trademark Office may file an international application by submitting to the United States Patent and Trademark Office a written application in such form, together with such fees, as may be prescribed by the Director. (b) Qualified owners: A qualified owner, under subsection (a), shall— (b)(1) be a national of the United States; (b)(2) be domiciled in the United States; or (b)(3) have a real and effective industrial or commercial establishment in the United States. 1141a (b2) and (b)(3) make it clear that an applicant need not be a national (citizen) of the US. The USPTO's page "Trademark FAQs" lists under the heading "General - Trademark Help - Getting Started - Other" the following Q&A: Must I be a U.S. citizen to obtain a federal registration? No. However, your citizenship must be provided in the application. If you have dual citizenship, then you must indicate which citizenship will be printed on the certificate of registration. | In theory "legalese" is English: you will find every word in the dictionary, and the rules of grammar are exactly the same. However in practice it is true that legal documents are often written in a very specific style. There are a number of possible reasons for this: The document must say what it intends very precisely. Most regular language is quite sloppy and ambiguous, but lawyers share with computer programmers the need to ensure that what is said is precisely what is meant. A legal document exists within a legal system in which certain words or phrases carry very specific meanings. For instance in the UK the words "in trust" when talking about money or property will automatically import a huge body of law (and its also possible to have that law apply even if you don't use the magic words). Lawyers know about these things, and will write a document to either invoke or avoid those bodies of law as they see fit. Related to (2) above, laws and legal precedents give lists of things that must be done or proved. Legal documents will often follow these lists using the same terms in order to avoid future challenges. For instance US patent law specifies what must go into a patent application, so you had better follow the format and use the same subject headings. Within patents in particular, the patent office manual allows a patent to be rejected because of informal language that leaves the patent unclear. Patent lawyers and examiners have evolved an informal set of conventions about how things are said. If you use these conventions the examiner will have a much easier time understanding what you mean. Its not "cargo cult", more a specialised language. (Note: the following is about the US patent system, but similar considerations apply everywhere.) Lets take a look at an example patent picked at random: The abstract lists the key elements of the invention in very abstract terms, such as "vibrating mechanism" and "power source". If you were writing this in "informal" language you might mention a specific power source such as a battery. But doing so limits your invention: what if something other than a battery (such as a super-capacitor or spring-driven generator) is used? That would be a separate invention not covered by your patent. So patent lawyers take time to think and ask about generalisations. The next interesting part is the Claims. These set out precisely what is and is not covered by the invention. If the Claims don't cover it then its not in the patent. The format of each Claim is defined in 35 US 112, so if you don't do it like that it won't count. Finally we get to the Description. This is intended to explain the invention to "any person skilled in the art". It also needs to explain the prior art and show why the invention is new and useful, because those are statutory requirements. Much of this is in fact written in an ELI5 way, if the 5-year-old had swallowed a dictionary. The reason is that any little thing omitted or assumed can be used by a future challenger claiming that the hypothetical "person skilled in the art" would have failed to understand or know it. So lets take a sample paragraph from this patent (numbers refer to diagrams in the patent): The electrical connection 22 may include a circuit device that transforms a DC power provided by the power source 26 to AC power for the vibrating mechanism 28, which circuit devices are known to those having ordinary skill in the art of circuit design. This anticipates a possible variation on the invention and stops it being patented separately. It asserts that the "circuit devices" are known, so it doesn't need to describe them in detail. If that assertion wasn't there then someone might challenge the patent on that point, but since the assertion has been accepted by the patent examiner it is presumed to be correct. Note the "... ordinary skill in the art ..." phrase: this is explicitly calling out to the language in Title 35. You might imagine that such a variation would be obvious, and therefore not patentable. However it is very difficult for a court to decide in hindsight whether something would really be obvious to a person skilled in the art; you wind up with each side hiring expert witnesses who will give competing testimony as to whether it seems obvious to them. As a result the courts have set a very low bar to a claim that something is "non-obvious". The language used throughout a patent is of vital importance: infringement cases can hinge on the most trivial of linguistic issues. This blog post by a patent lawyer has a list of examples, including this one: For example, in Chef America, Inc. v. Lamb-Weston, Inc., Chef America tried to protect a cooking step for heating a dough at a certain temperature inside an oven. But Chef America drafted the claim to read “heating the . . . dough to a temperature in the range of about 400 degrees F. to 850 degrees F.” The Federal Circuit reasoned that “to” is not “at” and, thus, the claim required the dough (not the oven) to be heated to the specified temperature. The Court then ruled that the claim was not infringed. In fact, under the Court’s claim construction, this claim could not possibly be infringed unless one wanted to make burned dough. See also this case on "partially" not including "totally", and this post on why the word "disclosure" is now used instead of "invention". Patent lawyers call this kind of thing "patent profanity", i.e things you simply do not say. So if you don't use this kind of "legalese" in your patent the following things are much more likely: Your application will be rejected because the examiner cannot understand exactly what your invention consists of. Trivial variations on your invention will turn out not to be covered. Someone will challenge your patent on the grounds that you didn't explain everything that a "person skilled in the art" might need to know. | A company had me sign two conflicting documents about two years apart. Which one would apply? Possibly both because actually there is no conflict. What you describe does not reflect that these documents are incompatible or inconsistent. There is no indication that the second document impliedly or explicitly replaces the first one. The second document seems just redundant so far. Employees could likewise be required to sign a third document that only says "no drugs or alcohol on the job site on Wednesdays", and that does not mean that any previous documents they signed expire. | Service of process is jurisdictional, but specific phrasing isn't typically specified by statute. For example, here's the Illinois statute, 735 ILCS 5/2-203(a): Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) by leaving a copy at the defendant's usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode, or (3) as provided in Section 1-2-9.2 of the Illinois Municipal Code with respect to violation of an ordinance governing parking or standing of vehicles in cities with a population over 500,000. The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so. The key is that the service of process be completed. Legally, this implies that the server will file an affidavit that describes the circumstances of the legal completion of service. For example, here is a sample affidavit. Like any other trade, process servers have an association that offers training, publishes a policy manual, and abides by certain best practices. All that said, the best practices don't specify any specific verbiage. Rather they elaborate a preference for the methods of service (e.g. personal vs. drop) and the like. |
Hipaa - doctor shared my medical information with everyone at religious facility I went to the emergency room in March thinking I had Covid-19 and since I am young and healthy the doctors labeled me as having a panic attack and assumed I was on something and so they drew blood for a blood test and quickly found out I was on nothing and they gave me some prescription for coughing and the cold and sent me on my way. It turns out one of the emergency room doctors that looked at my blood sample goes to the same religious facility as me and he told everyone there about what had happened and people have been treating me significantly different and it wasn't until someone revealed that the doctor told everyone this. My question is, shouldn't this be a violation of hipaa? I thought doctors aren't supposed to share any sort of medical information with anyone? Location - Dallas, TX. What course of actions should I take? What course of actions can I take? | Gossiping about a patients medical information is a clear violation of the privacy rule, and significant enough that various HIPAA-compliance websites list this in their "10 things for medical professional not to do". | There are, as far as I know, no "FDA-approved" vaccines against covid in the US. The FDA has given Emergency Use Authorization to some vaccines. This does not currently include the Johnson & Johnson vaccine. It is impossible for a person to get the J&J vaccine in the US, because it is not authorized, and J&J does not distribute it. One could imagine an unauthorized foreign vaccine being smuggled into the US, but it would be illegal to distribute it. I assume that you specifically mean, can a person refuse to get a vaccination on the grounds that it only has an emergency authorization and is not actually approved: and can one sue an employer for firing you because you refused to get vaccinated? In general, the employer can fire for anything they want, unless you have an employment contract that limits the grounds for termination. There are discrimination-based grounds that they cannot use, such as race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, disability, age (age 40 or older), or genetic information at the federal level. Mississippi has no specific employment discrimination laws. Other that that, an employer can fire an employee for any reason, or no reason (Mississippi is what's known as an "employment at will" state). There are some state restrictions where it is prohibited for an employer to fire an employee for engaging in a specific required activity such as being called for jury duty or being called to military duty. An employer could not require an employee to break the law, but that is not applicable here. | There is no such legal requirement coming from federal or NY state law. Doctors can refuse treatment when the patient is abusive or the matter is outside the scope of their practice, and that can include a test which requires skills, equipment or a contractual relationship that they don't have. Also if a procedure conflicts with their professional duties (that is a large loophole), they do not have to perform a requested service: an example is prescribing antibiotics for a viral infection. There is also a federal regulation known as the conscience rule which is conceivably applicable. If the test is medically unnecessary (e.g. a covid antibody test "just for the heck of it") it would be illegal for the physician to perform the test and bill the insurance, though not illegal to do the test and have the patient pay, unless their agreement with the insurance company precludes any and all unnecessary treatments (regardless of whether the patient pays). That is, you cannot compel the doctor to breach his contract with the insurance company. If they do perform the test, then according to HIPAA, they have to tell you the results. | Following you around with the intent of harassing you is stalking. I don't know whether there's going to be a law actually requiring social distancing in Florida. In other states, I've seen laws set up to make it a crime to violate an order of the Director of Public Health or something like that. I don't know whether Florida actually has an order requiring social distancing by the general public. | There is no prospect for equitable relief in such an outcome. The Texas state government enjoys sovereign immunity, except as specified under the Tort Claims Act. Under that law, immunity is waived only in the case of damage caused by negligence of a state employee, and is limited primarily to vehicle accidents and physical injuries. So the state cannot be sued for passing a law found to be unconstitutional. An individual would not enjoy such immunity, but given the law, there is no identifiable defendant to seek relief from (everybody is a potential defendant). An former abortion provider who now declines to perform an abortion can't be sued, because doctors in general have no obligation to perform particular medical procedures (most doctors in Texas won't perform an abortion, even before SB8), and the course will not render a judgment against a doctor on the grounds that they obeyed an existing law but should have known that it would be found unconstitutional. | The federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) may apply to you and provide certain rights. HIPAA does seem to cover part of this, though if it covers you particularly and the lab that performed the test is a separate question. On the Department of Health and Human Services website discussing HIPAA, they outline requirements discussing pre-employment drug tests. Basically, your authorization is required in order to release the results of the drug test to your employer and there is nothing prohibiting the employer from conditioning employment on your provision of that authorization. This seems to indicate that the drug test is a medical record. In another section on the same web site concerning your medical records, it outlines that the Privacy Rule gives you the general right to inspect, review and receive a copy of your medical records if the health care provider is covered by the Privacy Rule. You can read about the privacy rule on yet another section of that web site. Generally speaking, the privacy rule applies to any health care provider that transmits health records electronically. Certain exceptions to the rule apply, however determining what those exceptions happen to be is a more difficult task. You will notice from the hhs.gov web site that any entity that is covered by the privacy act is required to give you a privacy practices notice (with certain exceptions). If you didn't receive a privacy practices notice then the entity conducting the drug test is probably not covered by HIPAA. If you did receive a privacy practices notice then the entity conducting the test is covered by HIPAA and you have a right to review your records. | You may not assault a violator, you may notify the authorities. If your state has passed a law making it a felony to be outside without a mask, you can perform a citizen's arrest (but no state has such a law). So you cannot take the law into you own hands, and you run the risk of being arrested on felony assault charges if you do. There is always a significant risk that you are wrong about whether the order applies to a particular individual. You can always file a lawsuit, but you'd be in highly-experimental legal territory in terms of succeeding, specifically the claim that the person endangered your health (you can't sue on behalf of others, except e.g. as a parent on behalf of harm done to a child). For instance, nobody has successfully sued another person for going out in public having the flu on the grounds that they unreasonably put plaintiff at risk. You would have to experiment with that argument, to show that going out with a mask is reasonable and going out without a mask is unreasonable. | Article 640 of the Italian Penal Code under the heading "Crimes against property by fraud" begins (via Google Translate): Anyone who, by artifice or deceit, by misleading someone, procures an unfair profit to himself... And the article (cited by the OP in a comment) says the suspect... ...worked in the health sector and had been suspended from his job because he had refused to be vaccinated against COVID-19. The jab is mandatory for all health workers. So, it seems the allegation is that he intended to "profit" by gaining a COVID-19 vaccine certificate and therefore unjust employment after attempting to use the silicone patch to deceive the health worker. Edit following @jkej's comment observing that the alleged unfair profit was never actually procured. The more likely charge - depending on the actual evidence - would seem to fall under Article 56 which begins under the heading Crime Attempted (again via Google Translate): Whoever carries out suitable acts, directed in an unequivocal way to commit a crime, is liable for an attempted crime, if the action is not carried out or the event does not occur. |
What is the "area" of copyright claims and fair use of songs? There are many lyrics videos and other audio visualizer videos using songs they clearly don't have ownership own. Many of these receive a copyright strike on Youtube and are subsequently taken down, but many also do not. Additionally, there are many songs on Youtube in which you will get the message "The copyright claimant allows their content on Youtube and you cannot monetize it" and be allowed to keep the video up. Also, I don't think I need to mention the number of "streaming" services and song services of websites which are not taken down. So I have two questions: How do you know if the copyright claimant or owner of them material you are using is allowing their content on Youtube and does fair use automatically cover you for anything related to this (as long as you add some "value" such as an audio visualizer or lyrics)? Is it illegal to share the music experience of a legally purchased MP3 (play it on your website but do not provide an option for users to download it) or to provide services that play songs (but not download) but are not hosted by your website (in which case you just act as a pointer to other sites which are participating in illegal activities)? What rights/privileges can cover you if you wish to participate in this? I've heard (rumours probably with no legal standing), that as long as you are not monetizing their material, you will not have any legal action taken against you. | How do you know if the copyright claimant or owner of them material you are using is allowing their content on Youtube? You don't. ... does fair use automatically cover you for anything related to this? No Is it illegal to share the music experience of a legally purchased MP3 ... or to provide services that play songs ... but are not hosted by your website (in which case you just act as a pointer to other sites which are participating in illegal activities)? Yes What rights/privileges can cover you if you wish to participate in this? None I've heard (rumours probably with no legal standing), that as long as you are not monetizing their material, you will not have any legal action taken against you. You probably won't have action taken against you. That said, you probably won't get busted for smoking weed in your basement. Lack of enforcement makes it no less illegal. What copyright means Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time. The exclusive rights are not absolute; they are limited by limitations and exceptions to copyright law, including fair use. The copyright holder decides how, when and by whom their work can be used and copied. At some point this right expires and the work passes into the public domain. It is not trivial to determine what works are public domain and what are not as it depends on the copyright law in the country they were created in at the time of creation and how that law has changed subsequently. In most of the world, the default length of copyright is currently the life of the author plus either 50 or 70 years. Many jurisdictions also grant workers for hire moral copyright in their creative work even when the proprietorial copyright vests with their employer. Copyright comes into existence automatically; it doesn't need to be registered or denoted in any way. For example, I have copyright in this answer and you have copyright in your question. A few countries (the USA among them) have a copyright register but that only limits the remedies an unregistered copyright holder has; failing to register does not negate copyright. Further, a single work can have multiple copyright holders: a music video for example has (barring contractual arrangements): the composer(s) holds copyright in the music the lyricist(s) holds copyright in the lyrics the performer(s) hold copyright in the music performance the actor(s) (if any) holds copyright in the acting the producer(s)/director(s) holds copyright in the finished product. In practice, most of these people have contracts which give their copyright to someone else. Almost certainly, every MP3 of every song is covered by copyright; that is, someone, somewhere owns the copyright; that is at least one someone. How can you tell who that is? Often, in the absence of a claim of copyright, you can't. Obviously, if it is a song published by a record label than its pretty obvious that they hold copyright on it and you don't need to worry about the deals they have with the artist/composer etc. Remember, copyright violations are a civil matter; the state does not get involved. It is up to each individual copyright holder to take whatever action they wish under the law to protect their rights. | It's hard to say, under the Twitter TOS. They do not claim that copyright is transferred to them: "You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your photos and videos are part of the Content)". But you do license the content: By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. The totality of conditions, including the Twitter Rules, is ever-evolving and not apparently contained in a single link. From what I can tell, there is no condition that prohibits a user from copying tweets into a book. There are numerous statements about "respecting copyright" which refer to taking material that is not licensed to Twitter and redistributing: nothing about redistributing licensed material.A plain reading of the first bold sentence says that you can make your content available to the world, not restricted to "retweeting". | Technically, this is infringement Overview of US law In the US, Playing copyrighted music in a private setting for personal enjoyment and practice does not require any license or royalty payment. However, uploading recordings in which copyrighted music is played so that others, even a small invited group, could download copies and could, if they choose, distribute them further would be copyright infringement if done without the permission of the copyright holder. In the US such permission could be obtained with a "mechanical" license, which requires payment of a statutory fee. Or it could be requested directly from the holder or holder's agent, in which case the terms would be whatever the holder will agree to. Making recordings of a copyrighted musical work, even if they are not distributed, also requires permission (which can be obtained through a compulsory "mechanical" license or directly). Cites to US Copyright Law 17 USC 101 says: To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. 17 USC 106 lists as among of the rights which a copyright holder has: (1) to reproduce the copyrighted work in copies or phonorecords; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; 17 USC 115 covers "mechanical" or "cover" compulsory licenses. Practical Considerations Given that the web site will be on an invite-only basis, it is likely that the copyright holder would never learn of it. Even if the copyright holder does learn, many holders would not consider filing suit, which would involve court fees and legal expenses, in such a case. If no fees are being charged, and the market for the copyrighted work is not harmed. the likely damages even if a suit is filed and won, are relatively small, so a suit might well not pay off. But some holders would sue on principle, and there is no way to know in advance who would or would not. There would be an element of legal risk in putting up such a web site. Other countries The above is all based on united-states law. I believe that the law would be similar in most countries that have signed the Berne Copyright Convention, but the details would differ. | 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. | As usual with trademarks, the key question is "will reasonable people be confused about the source or affiliations of the product or service". Trademarks are, as you already know, limited to a particular industry or area of business, in general. Displaying user videos is not exactly the same thing as a particular popular song, but they just might be close enough for some consumer confusion tom occur. Whether reasonable people are in fact confused into thinking that the app is in some way sponsored by the makers of the song is a question of fact. A trademark suit would probably need to present some sort of evidence that confusion had occurred or was likely. It also may make a difference whether "Tik Tok" has been registered as a trademark. In the US, registration gets greater protection than mere use. (In some countries there is no protection without registration.) It is also possible that the app has already licensed the rights to the term from the trademark owner for the song. This would avoid a potential suit. It is also worth noting that the term "Tik Tok" is not original with the song. It dates back, in that spelling, to at least the "Oz" books by L. Frank Baum and others Tik-Tok of Oz dates from 1914, and the character of the Tik-Tok from the book Ozma of Oz (1907). Terms that are not original coinages are less strongly protected in trademark law, and the app could claim to be alluding to the Oz character, not the more recent song. A comment by ub3rst4r says that: the term "Tik Tok" is registered as a trademark in the USA by "Bytedance Ltd" (which is the company that operates the app). If that is correct, the US Patent and Trademark office (PTO) came to at least a preliminary conclusion that this trademark did not infringe anyone else's trademark. That doesn't meant that an infringement suit is doomed, but it would make any such suit harder and less likely. It seems that, as described in this news story a company selling watchs under the name "Tic Tok" was sent a cease and desist letter on behalf of the singer Kesha Sebert. The firm responded by filing a suit for a declaratory judgement. The case is Wimo Labs LLC v. Kesha Sebert, U.S. District Court for the Northern District of Illinois, No. 1:11-cv-02978. However, google does not show any resolution of this case, one way or the other. This was brought to my attention in a comment by StephanS. As this docket record shows, the case was dismissed by agreement without prejudice, apparently after a settlement (as stated in the comment by user muru). Thus there was no ruling on the merits of the case. | No This is not a copyright issue as you are not making a copy (save for a transient one in your cache which is allowed). You are allowed to record it for personal time-shifting as that is fair use/dealing. The broadcaster either owns the copyright (unlikely) or has a contract with the copyright holder that allows them to broadcast it. Assuming the broadcaster chooses or is not permitted to subsequently stream it, if you miss it, you miss it. Your contract with the broadcaster is over. Their obligation was to make the broadcast available to you, yours was to pay for it - nobody is obliged to watch it. You can, of course, seek the content from any other legal sources, complying with their terms including payment if necessary. | I know that classical music is public domain, so no-one can claim that they own classical music. That's not quite right, at least not under US law. First off, "classical music" is a style, and music in that style is not automatically in the public domain. The rule for if music is in the public domain depends on when it was written, not what style it's in. For instance, music written in the US after 1926 is likely to still be copyrighted. Second, that's about copyright in the composition. A recorded performance has its own copyright, separate from the copyright the composer has in the composition. Even if Beethoven's Ninth Symphony is public domain, a performance of it by the New York Philharmonic involves creative interpretation and belongs to the orchestra (assuming it was recorded). So unless the recording you used was public domain, it still is subject to copyright. In the US, copyright for recordings after 1972 mirrors normal copyright law; copyright for recordings before 1972 is complicated. Third, Youtube's system involves some amount of automation. It is possible that the Content ID claim involves an automated system incorrectly thinking your recording was a copyrighted one. That's why you can dispute a Content ID flag and ask the copyright holder to review it manually. | Musical compositions can be, and if recent almost always are, protected by copyright. This is separate from the copyright on a recording of a performance of the work. If you reuse a musical passage, the new work may be a derivative work, that is a work based on an earlier work. Or an extended musical quotation could be considered to be copyright infringement. If this is in the united-states the use of a section from a previous work might be considered to be a fair use (fair-use). This is a specifically US concept in copyright law, although several other countries have a concept of fair dealing which is somewhat similar, although narrower. Whether a use is a fair use is an inherently fact-based determination. There is no clear and simple bright line for what is and is not a fair use. US law (17 USC 197) specifies four factors which are to be weighed by a court in considering the matter: The purpose and character of the use. If your use is commercial that weighs against fair use, but does not at all preclude it. This factor also includes whether the use is transformative or not. A transformative use is one that takes the part used for a very different sort of purpose than the original. Parodies are normally transformative, for example. A quote for purposes of commentary and analysis, or criticism is normally transformative. Transformative uses are more likely to be considered fair uses. The nature of the copyrighted work. Creative works such as fiction and music are more strongly protected than works such as textbooks and news stories. This probably weighs against fair use in the case described. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. If only a short section of a longer work is used, that weighs in favor of fair use. However very short quotes can still fail, to be held to be fair uses. In Harper vs Nation a quote of about 300 words from a 500 page book was held not to be fair use because it was "the heart of the book". The effect of the use upon the potential market for or value of the copyrighted work. A use that significantly harms the market value of the original, or serves as a replacement for it, weigh strongly against fair use. This was a major factor in Harper vs Nation. Each case of claimed fair use is evaluated by looking at all four factors, and the specific facts of the case. From the description in the question, such a use might well be held to be fair use. Musical quotations often are. But there is no way to be sure unless a court evaluates the specific case. A lawyer specifically experienced in not only copyright law, but copyrights on music, might be able to give more specific advice. Or you could, of course, seek permission from the copyright holder, quite likely the original composer or artist. If you get permission, there is no further issue. There might be a charge, but when the use is minor, and has no commercial effect, the charge might be small or even zero provided that the source is acknowledged. |
Performing music in public I am a musician. I want to perform music. How do I do this without being sued into oblivion? I am particularly interested in UK law. As I understand it, a specific sound recording (of anything) is protected by copyright, but the specific pattern of musical notes that make up a song is also protected (and the rights might belong to somebody different). So even if I don't use any copyrighted sound recordings, if I were to play a song that's recognisable, I would still be sued. When looking at a song, I believe there are three possibilities: The song was written so many centuries ago that nobody holds the rights to it any more and the music is in the public domain, e.g. Bach is presumably out of copyright now. You wrote the song yourself, so you own the rights to it. Somebody else owns the rights to it. Obviously, it's the third case that presents a problem. In theory, you find out who owns the rights, and ask them whether you can use the song. Maybe they say yes, maybe they say no. In reality, it's not like you can just call Sony BMG (or whoever) and chat to them about it. And even if you could, they'll want tens of millions of dollars to license the song, which I obviously don't have. This appears to mean that it is actually impossible to ever play any song that people will recognise. Am I correct in my interpretation of the law? Is there some way around this problem? | Most countries have compulsory or statutory licences for exactly these situations. You enter a licence agreement with a collecting society, pay them licencing fees, and give them a record of the music you perform. They in turn then distribute royalties to the rights holders. The exact details of which licence you'll need depends on your country, the types of events you will perform at, the frequency of the events, the size of the audience etc. It may be the venue's responsibility to obtain the licence instead of the performer, or both the venue and the performer may need to. I don't have any experience of this, and if I did my experience would be useless to yours in the UK ;). But luckily the UK has an easy to find website which tells you just where you need to go. You will need to get a licence from an organisation called PRS for Music. | Depending on where exactly you are in the world, there is some protection for the representation of copyright-expired material if work went into presentation. So you might be allowed to put a Bach cantata into musical notation yourself, since he died in 1750, but you cannot simply copy another publisher's sheet music to save that work. The same might apply to an old newspaper article. If you find a print and scan it, you can upload it, but you may not be able to take it from the database organized by someone else. In austria, there is §40f Urheberrecht, which defines databases (they may or may not be collected editions). §40h clarifies how the right to a private copy in §42 extends only to "private use and neither directly nor indirectly commercial purposes." In germany, there is 87a-e UrhG, which covers databases whose assembly did not represent creative work (e.g. by simply ordering things by date). They are protected if the assembly required significant investment. This "lesser protection" lasts only 15 years, not 70, and there is a "a significant part" test for copying less than the whole database. | Beethoven's Piano Sonata is public domain There will be copyright in the performance but as you are specifically hiring the musician to perform the piece for you to record, you would own the copyright in that as a work for hire provided this is stated in the contract. | No, one cannot safely assume that because some people have done a thing without being sued, that it is OK to do a similar thing and no suit is possible. It is possible that people who upload a video, or a section of it, have permission. It is perhaps more likely that the copyright owner does not choose to sue, for whatever reason. But a different owner of a different video might make a different choice. Uploading a video, or even a section of a video, without permission, will be copyright infringement, unless an exception to copyright such as fair use or fair dealing applies. Such an infringement gives the copyright owner valid grounds to bring a suit. But the owner can choose whether or not to sue. An owner can sue in one case of infringement but not in another, for any reason or none. If the expected damages are small, it many not be worth the time, trouble, and costs to sue. In the US, one must register a copyright before bringing suit for infringement of that copyright, and there is a fee for registration. Some owners feel strongly about the use of their work, and will sue on any pretext. Some may prefer to tacitly support uses that they approve of by not bringing suit. One cannot tell the attitude of a particular owner unless that owner has stated what his or her view is. Short films are just as protected as full-length feature films, and suit can be filed for infringing the copyright on a short film. But the more expensive a film was to make, and the more money the owner expects it to earn, the more likely it is that the owner will choose to sue. Many people infringe by uploading short films or videos, gambling that the copyright owners will never learn of this, or will not trouble to sue. Sometimes such infringers are correct, and sometimes they get sued. I do not understand what the OP means by the part of the question that reads "There should be more detail and complex lines over here" What additional detail is wanted? Who does the OP expect to provide it? What sort of "lines" does this refer to? | Because you are on their premises and they get to decide what people can or can't do while on their property. This has nothing to do with if recording is legal or not, it has to do with basic property rights and trespass. Let's assume that recording is perfectly legal: so is eating ice cream. However, if its my shop, I can require that you do not make recordings just as I can require that you do not eat ice cream. If I make this requirement known you have three options: you can comply, you can leave or you can stay and do the thing I have prohibited. The first two are legal, the last one isn't; its trespass which is both a tort for which I can sue you and a crime for which you can be arrested and prosecuted. | Summary: A transcription of a "faithful" to-the-letter recorded performance of a public domain work is not copyright infringement. However, once there exists original changes to the underlying composition, the transcribers are infringing copyright in all but the most trivial cases and are in for an uphill legal battle. Caveat 1: I'm mainly confining myself to US law due to the statement that this concerns a US-based company. However, there might be legal troubles in some jurisdictions for both the company and transcribers where a perpetual and inheritable moral right of first publication is recognized, like Germany (UrhG § 12). Caveat 2: Outside of copyright law, the company could theoretically gain some limited protection by selling the recording under a contract with a "no transcribing" clause. Since a similar scenario has already been discussed on this site, I am confining myself to the copyright law aspects. 1. What did the transcribers copy? In effect, I believe the transcribers are ultimately copying an underlying arrangement fixed by the recorded performance. That's a bit dense, so let me explain: As you already note, a performance is an artistic rendition of the underlying composition. This performance has separate copyright and may even include various changes to the underlying composition such as dynamic changes, instrumentation changes, tempo changes and various flourishes. I believe that a transcription would mainly reflect the underlying composition plus any such artistic changes to that composition made in the performance. Effectively, from a music theory perspective an underlying composition with artistic changes is the definition of an arrangement. From a legal perspective, an arrangement is copyrightable as a derivative work. Even though it's the performance itself that's being copied from and you haven't specified that there's a separate written arrangement, one can consider an implicit arrangement created by the performance. This implicit arrangement is then documented (i.e. fixed) by the recorded performance. Since a transcription is not capturing the sound itself, but rather the compositional elements of that performance, i.e. the arrangement, I think that it's a useful perspective to consider that the transcribers are copying an arrangement. Even if this way of viewing things turns out not to be 100% accurate, I think it's accurate enough and provides a clearer picture into the underlying legal concepts. I do however admit that some may take issue with this simplification, and it's entirely possible that my answer is completely invalid if this simplification turns out to have no merit. 2. Extent of possible copyright infringement The company which commissioned the orchestra and the recording undoubtedly has copyright on the performance. However, they do not have copyright on the underlying original composition, as that copyright will have long expired in US law. The company can't claim copyright on material which originates in the underlying public domain composition, but can claim copyright for any original contributions made by the arrangement (17 USC 103(b)). As such, I would expect an infringement lawsuit launched by the company will be limited to the portions of the arrangement that differ from the original composition and that are then copied into the transcription. In order to properly determine what those portions are, we would need to compare the transcription, performance, and manuscript together. Since it's the company that is initiating a lawsuit, I would expect that the judge would force them to disclose the manuscript for the proceedings (and instruct the parties that the information is not to leave the courtroom, which is ironic since an NDA is how this whole mess started). This is an exercise that will likely get bogged down in excruciating note-by-note comparisons, but luckily those are factual questions, and I'm just going to discuss the higher-level legal concepts. You also mention there might be "mistakes" included. In theory, copyright protection only applies to creative choices made, I don't believe that mistakes would count. In practice though, this may be difficult to prove and I think the company would argue it was an artistic choice, thus rolling it into the overall changes which constitute the arrangement. However, they might alternatively argue the mistakes are a purposeful copyright trap which can have mixed results. 3. Copyrightability of the arrangement In my opinion, the obvious argument to start with is that the company's arrangement does not qualify for copyright protection. This is a bit of a spectrum. While a full-fledged arrangement is undoubtedly protected as a derivative work, here we are dealing with just portions of an arrangement. Based on the premise of the performance being an accurate representation of a public domain song, I would expect these portions to be minimal. In fact, in the ideal case of the performance being a perfect faithful rendition of the composition, there is no separate underlying arrangement and therefore no copyright to infringe. This would be similar to the case of a photo of public domain art, which gains no copyright due to lack of originality. Copyright requires a "modicum of creativity" as determined in Feist Publications, Inc., v. Rural Telephone Service Co.. Feist also shows the reason copyright traps don't work for defending an originality argument: while you can use traps to prove that copying occurred, they provide no indication as to the actual originality/creativity of the work. The transcribers can thus try to argue that the given portions of the arrangement do not meet this standard for copyright protection. As applied to music, one can consider that the basic building blocks of musical composition are not copyrightable, though large enough combinations of these building blocks do qualify. An examination of this can be found in Marcus Gray v. Katy Perry, where a specific 8-note sequence was found not to be eligible for copyright protection (though do note the case is currently being appealed). The court additionally stated that even if the sequence was copyrightable, such a small sequence would only be found to be infringing if the copying was virtually identical. Since the transcribers are presumably attempting an accurate transcription, this latter point is important to us as it shows that it would not take much copying for copyright infringement to occur. On the other hand, I would expect the differences in the arrangement and original composition might be scattered around and perhaps not be a cohesive artistic unit, which would benefit the transcribers' argument. For further information, LegalEagle has a 25-minute YouTube video discussing this case and the involved legal principles. As the arrangement is a derivative work, the transcribers might be able to advance a separate "triviality" argument. The Seventh Circuit Court of Appeals (also citing the Second Circuit cases) states in Schrock v. Learning Curve International, Inc. [T]he key inquiry is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way. However, this emphasis the court makes on having the derivative be nontrivially distinguishable from the original doesn't arise from statute, but from a practical concern of determining whether the derivative or original was copied from given a hypothetical subsequent derivative. Assuming the company can prove the original hasn't been "leaked" and is unpublished, I would expect this argument to be discarded. Additionally, here is where copyright traps might actually help the company. Interesting aside: the German law on derivatives diverges here based on an oddly specific clause for public domain music (UrhG § 3): Translations and other adaptations of a work which are the adapter’s own intellectual creations are protected as independent works without prejudice to the copyright in the adapted work. The insubstantial adaptation of an unprotected musical work is not protected as an independent work. 4. The asserted truths doctrine This is a bit of a novel argument, since the Ninth Circuit Court of Appeals only just articulated an "asserted truths" doctrine on 2020-09-08 in Corbello v. Valli: Adopting an “asserted truths” doctrine, the panel held that an author who holds their work out as nonfiction cannot later claim, in litigation, that aspects of the work were actually made up and thus entitled to full copyright protection. Basically, an author had claimed that the work was a factual biography, but then in the lawsuit claimed it was fiction in order to gain additional copyright protection since facts are not entitled to copyright protection. The court denied copyright protection for such an action. If the company is asserting that the performance is a 100% faithful rendition of the public domain work, the transcribers might be able to adapt this argument. They might argue that they relied on the asserted truth that they were copying public domain material. The company might counter that since this is a performance, one would expect that there will necessarily be at least some small differences and so the doctrine does not apply. Here, the transcribers may be able to counter that based on the company's representation, they had expected that any such small differences would not be under copyright due to not meeting the "modicum of creativity" standard. I think this argument is a stretch though. 5. Making the transcription public domain & final points Assuming the arguments above worked for the transcribers, they don't really need to specifically designate the transcription public domain – it already is by its nature of not being copyrightable by those very same arguments. The one exception though would be that they hold copyright in the layout of their transcription so would have to designate it public domain for that purpose. If the arguments above do not work for the transcribers and the arrangement is found to have copyright protection, I can't think of any other viable arguments for the transcribers. They might argue fair use, but given their intent to disseminate the transcription, I would expect that argument to fail quickly based on both the nature/quantity of the copying and the damage caused to the company's revenue. On the minimal chance that fair use or some other argument works, the transcribers still could not put the transcription in the public domain. They could say that, but it would be of no real effect, since in this scenario it's the company that holds copyright over the arrangement represented by the transcription. In all, I believe that if the performance is a rigorously faithful rendition with only the odd mistake or flourish here and there, then the transcription is not copyright infringement. Otherwise, it is. Wow, that took me a while to get to this relatively simple conclusion. | Rolling Stone has a short non-technical article on a dozen famous cases. This page is a massive database on music copyright infringement cases going back to 1844, along with analysis of the cases. That analysis may well suffice for your interests: here is an except from a recent case: In fact, there is no melodic material in the section in question in the plaintiff’s work. The harmonic progression of the arpeggiated chords of both songs is utterly commonplace and not copyrightable expression. Neither are “structure, tempo, instrumentation” when, as here, these elements in both works contain no protectable authorship individually or combined. The plaintiff’s references to “iconic notes” and “feel” are meaningless. What excited the plaintiff was merely the fact that a portion of the defendant’s song sounds like his. This similarity, however, doesn’t support a claim of infringement of a musical work when, as here, the musical elements of the portions of the songs in issue underlying the recorded sounds of both works contain little or no protectable original expression Apart from providing the appellate court rulings, this also includes original complaints and petitions, certain trial court rulings, and amicus briefs which are the "technical" core of the court's finding of fact. However, you will need to read a varied sample of these cases and not just pick one at random. This will at least provide the raw material basis for discovering how these decisions are made. | Seems unlikely that it will "forestall copyright infringement suits". Some jurisdictions, e.g the USA, say that "Works produced by mechanical processes or random selection without any contribution by a human author are not registrable". On the face of it, in such a jurisdiction copyright can't exist in a randomly generated work. Which the TED talk doesn't mention. https://www.youtube.com/watch?v=sJtm0MoOgiU Let's imagine a case in a jurisdiction where copyright can exist in such a work. There is a dispute between two artists or labels. The plaintiff produced a well known tune and accuses the defendant of copying this work. The defendant says the plaintiff didn't have copyright in that work because it wasn't original in the first place, there is a 1200GB TAR file (compressed file) on GitHub that contains all possible single octave, 8-note, 12-beat melody combos, which were produced before the plaintiff's work. The plaintiff says, "like the majority of the population I never heard of GitHub, let alone downloaded, uncompressed a 1200GB file and listened to every melody." That's all aside from plaintiffs or lawyers deciding they have a case or believing the mere threat of civil proceedings will cause the alleged infringer to acquiesce to their demands. I think they are making a point about the law rather than a realistic means of thwarting copyright disputes. It's reasonable of the creators to say there is a finite set of melodies and the likelihood of inadvertently 'creating' the same melody as someone else may be smaller than we think, maybe copyright law has led to some unjust outcomes and led to a chilling effect on music-making. |
Examples of Unethical Experimental Studies I am teaching ethics in a statistics class. I am looking for examples when deceptive statistical evidence was caught or attempted to be used. For example, is there an example of a party who had several surveys or studies performed and tried to only publicize the findings that was beneficial to them? I am looking for court case examples. Thank you. Edit I am aware that using misleading statistics can be punished by being fired or publicly disgraced in the scientific community, which is not a legal matter. However, some statistics is actually used for important decisions or claims. I am looking for when bad statistics contributed to a decision that caused damages that led to a criminal or civil case. I am not part of the law community, so I cannot say whether I am looking for fraud, bad faith, or incompetence in any technical sense. But here is an example. Say a company pressured researchers to conclude a product was safe or exceeded its true capability. Then that product caused damage to some party who sued. If evidence came that a biased sample was purposefully used, I think that would show bad faith on that company and have bearing upon the court's decision. Or if a too small sample was taken and the data was presented without confidence intervals, that could show incompetence and the company failed to perform due diligence. Outright falsification of evidence would clearly show unethical practices, but I am looking for more interesting examples in the "grey area." I did not find any case examples, so I assume there are not many. That is why I asked it here. | Statistics deceive courts all the time Most judges and jurors know no statistics. Most doctors and social scientists use statistics without really understanding them. Therefore, innocently or otherwise, perfectly valid statistics are introduced into courts in ways and manners that result in mistakes even before we consider the possibility of deliberate deception. Perhaps the most egregious example was that of the wrongful conviction of Sally Clark for the murder of her two children who died of Sudden Infant Death Syndrome. The conviction led to her spending 3 years in gaol and probably contributed to her premature death of alcohol poisoning in 2007. The case was flawed for two reasons: 1) evidence that clearly pointed to death by natural causes of her second child was withheld from the defence (and, to be fair, from most of the prosecution team) and 2) misuse of statistics. The expert evidence of paediatrician Dr Roy Meadow was flawed in these ways: "He claimed that, for an affluent non-smoking family like the Clarks, the probability of a single cot death was 1 in 8,543, so the probability of two in the same family was around "1 in 73 million" (8543 × 8543). Given that there are around 700,000 live births in Britain each year, Meadow argued that a double cot death would be expected to occur once every hundred years." As any undergraduate statistician (or advanced high-school mathematician) could articulate this is total bollocks. Combining probabilities by multiplying them together is only applicable if the events are independent - there is no evidence that the deaths of 2 young children with the same parents living in the same house at roughly the same time are uncorrelated and plenty of reasons for suspecting that they are highly correlated and probably in non-linear ways. Indeed, subsequent studies have shown that the risk of a second SIDS death in the same family increases by a factor of 5 to 10 - this is a very high correlation on what is still a very rare event. It is ironic and tragic that the argument that led to the charges (that the deaths are correlated by a single murderer) relies on the exact opposite (and equally vacuous) argument that led to the conviction (that SIDS deaths within a family are uncorrelated). Further to the statement, the rate of SIDS in the UK is 1 in 1,300; not 1 in 8,500. Dr Medlow factored in the non-smoking and socio-economic elements of the household that lowered the chances but failed to factor in those that increased the chances: like the fact that both children were boys who have a higher rate of SIDS than girls. Further, it's likely the court committed the Prosecutor's fallacy. Specifically, the court failed to understand the difference between conditional and unconditional probability. Double SIDS deaths are rare. But so are double infanticides. Even if Dr Medlow's figure of 1 in 73 million for double SIDS is accurate, it says nothing about the chances of double homicide (let alone double homicide by whom). We are not interested in the likelihood of 2 deaths by SIDS or homicide in the general population - we are interested in the chance of SIDS OR homicide OR something else (noting the second child likely died of a bacterial infection - so neither SIDS nor murder played a role) given that 2 deaths have occurred. For that, we need to turn to the good work of Reverand Bayes: Further examples can be found here. | Offering up evidence that another person committed a crime is a standard and accepted, although rare, criminal defense strategy. It is mostly not used very much because most crimes for which defendants are charged were not committed by somebody else, and because most innocent defendants lack the investigative and economic resources to identify enough information about another potential suspect to present such a case credibly. The defense would have to articulate to the judge that the reason for offering up evidence about Z is to support Y's theory of the case that Z and not Y committed the crime, in order to overcome a relevance objection. But, the defendant had wide latitude to do so in order to create a reasonable doubt that the defendant committed the crime. In most circumstances, it would be a reversible abuse of discretion to prevent the defendant from introducing evidence to support a theory of this kind. A similar strategy, for example, was recently used in a preliminary hearing in a case involving a high profile murder in Colorado where a man stands accused to murdering his wife (the man is Barry Morphew) has developed a theory that his wife was murdered by someone else based in part, for example, on the evidence of unidentified DNA near the murder scene allegedly associated with previous crimes in DNA databases. | It's hard to say, given how little we know about the case and the information, also what you mean by "corrupted" and what your evidence is. Here are two hypothetical cases that illustrate different possibilities. 1: The accused instructs the lawyer to tell the judge "My client has an alibi against the robbery charge: at the time, he was murdering his brother". Lawyer deems this to be a bad argument because murder is punished more severely than robbery. The lawyer is doing his job, protecting the interest of the client. No crime or civil wrong. 2: The accused instructs the lawyer to tell the judge "My client has an alibi against the robbery charge: at the time, he was in church". The lawyer doesn't understand that this is exculpatory evidence, thinking "they never asked about church, there's no point in me raising this issue". The client can probably sue for incompetence. There are possible criminal charges possible, for example if the lawyer is working for The Mob he might be involved in an actual criminal conspiracy. | I have not found a case directly on point, but there is a case in the right neighborhood. In Flordia v. Carter 364 So. 2d 1249, Carter was charged with perjury for making a false statement under oath. He recanted his testimony in a letter to the defense attorney the next day. Subsequently he was charged with perjury: the trial judge dismissed the case based on his having recanted (which is a defense to perjury). The judge said (quoted in the appeal below and citing a relevant precedent Brannen v. Florida 114 So. 429) It matters not whether Carter knew his original testimony was false or whether he was merely mistaken. "The law encourages the correction of erroneous and even intentionally false statements on the part of a witness, and perjury will not be predicated upon such statements when the witness, before the submission of the case, fully corrects his testimony." The lower appeals court rejected the trial court's dismissal, saying Recantation is a defense to an allegation of perjury only where there is an acknowledgement of the falsity of the original sworn statement, a voluntary retraction of that statement, and a new statement which discloses the true facts. It is not a viable defense where the perjured testimony has substantially affected the proceeding or it has become manifest that such falsity has been or will be exposed. Otherwise, one could rest on his lie, allowing it to substantially affect a proceeding, and never retract unless the falsity had been exposed. This would provide no inducement or encouragement to tell the truth. That court basically felt it was based on the threat of being discovered, and felt that a particular state statute had taken away the recantation defense, so they reinstated the charge. The appeal to the Florida Supreme Court, Carter v. Florida 384 So. 2d 1255 basically declared that the appeals court was wrong about the statute (they officially held that recantation is a defense to perjury). They concluded that Carter gained nothing by recanting (that was a distinguishing feature in a precedent that the lower court favored). The dissent in this decision opined that It may be that the false deposition testimony by Dr. Carter was inadvertent and without criminal intent.... These, however, are factual issues and should be resolved by a jury rather than by the trial court on a motion to dismiss. What unifies all opinions on the matter is that a false statement made under oath must be recanted. The reason why Carter was not convicted was that he (possibly) was unaware that his testimony was false and he did recant when he became aware of the facts. | 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." | If somehow the lawyer knows that evidence provided by their client to the court is false, the lawyer has an obligation to direct the client to cease the perjury and to persuade the client to disclose to the court that the evidence was false. If the client does not stop, the lawyer must withdraw. There are tactful ways to express the reason for withdrawal to the court without prejudicing the client. Ethics opinions and guidance are available online from various bar associations explaining how to handle this situation, as well as academic scholarship on the topic: https://www.alabar.org/office-of-general-counsel/formal-opinions/2009-01/ https://www.lawsociety.ab.ca/resource-centre/key-resources/client-relationship-management/untying-the-knot/ https://firearmslaw.ca/2013/10/25/right-to-know-the-ethical-dilemma-of-a-lying-client/ https://www.ncbar.gov/for-lawyers/ethics/ethics-articles/dealing-with-client-perjury/ https://scholarcommons.sc.edu/sclr/vol42/iss4/10/ Every bar association should be able to provide advice to a lawyer faced with this situation that is tailored to the specific circumstances and the local rules. | There are all manner of reasons that evidence can be excluded at a trial, most of which are set forth in rules of evidence. If the evidence was not admitted on the grounds of relevance and the charge was speeding, I presume that the reason that it was found not be to relevant was that it was not possible from a video to determine how fast someone was driving and there was no dispute in the case over who was driving. If the defendant could have articulated some reason that the video was relevant to those points, perhaps it could have been admitted. But, as if often the case, pro se defendants are usually not articulate enough to set forth a legally relevant reason that evidence should be admitted. Unless the defendant could show that the video showed something allowing a jury to determine whether or not the law was violated, it probably wouldn't be relevant and I can't easily imagine how it would be relevant, but perhaps there was some special facts or circumstances that might show, for example, that the speed gun was actually picking up another vehicle. | 17 U.S. Code § 107, which governs fair use in the US, says (emphasis mine): Notwithstanding the provisions of sections 106 and 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— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 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. Note that commercial/educational use is part of only one factor. Even if that factor is in your favor, it may not be fair use, and even if it isn't in your favor, it might be fair use. Because fair use is determined on a case-by-case basis, we can't really say whether your use is fair use, with or without the donations. That would be the sort of thing you'd ask a lawyer about to get real legal advice on your particular case. |
Can I shoot my homemade bow and arrow in my backyard in Beaverton Oregon? I have a PVC homemade bow in my backyard that I want to shoot. Can I shoot it at a target that is up against the fence? I will put cardboard around it, but I have neighbors on three sides of my house and a road on the 4th. I will be shooting down but I might miss. Do I need to get the neighbor's permission and if I do is it still legal? | ORS 166.220 suggests this would be illegal - specifically its "unlawful use of a weapon" if a person (emphasis mine): Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge. So what's "within range"? With a homemade bow of unknown construction, draw weight, and unknown arrows I'd say it's pretty much going to be something you find out when an arrow goes that far. I wouldn't expect it to match the range of high-end bows and arrows (I've seen 40lb recurves cover ~250 yards) but 100 yards plus doesn't sound ridiculous - more if it's got some elevation to it. The point is you really don't want to find out the hard way when a shot goes astray giving your neighbours the old King Harold treatment. | Do you own the land? Placing your stuff on property you don’t own without permission is … illegal dumping. | There is commonly a law like RCW 69.50.309 which says that A person to whom or for whose use any controlled substance has been prescribed, sold, or dispensed by a practitioner, and the owner of any animal for which such controlled substance has been prescribed, sold, or dispensed may lawfully possess it only in the container in which it was delivered to him or her by the person selling or dispensing the same. A controlled substance is "a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or commission rules". Schedule V includes some opiates with low potential for abuse and dependency. It does not include prescription antibiotics, and does not include Ibuprofen and other OTC NSAIDs. The cop may be right about keeping your narcotics in the original container, but wrong about anything less. I can't presently locate the Oklahoma analog of this law. After diligent searching, I even suspect that Oklahoma does not have such an "original container" law. It would count as a "counterfeit substance" if it is a controlled substance and is in a container with labeling that is not that of the original distributor, but if the contain is completely blank, it is not legally a "counterfeit substance". And again, that only applies to controlled substances. | I'll give you the situation in Washington, which is probably similar to the situation elsewhere. RCW 68.50.130 say that you have to follow the law in disposing of a body. To perform a cremation, you need a license. The regulations established by the Department of Licensing say that cremations take place in a crematory, and the facility must be licensed. We turn to the definition of crematory, which is a building or area of a building that houses one or more cremation chambers, to be used for the cremation of human remains This applies to hydrolysis facilities as well, but not composting facilities (which can simply be "real property"). | Is entry into the yard subject to 24 hour notice? Most likely it is. Note that section § 47-8-3 defines both dwelling unit and premises. The latter encompasses the term "appurtenances", which the Black's Law Dictionary defines, inter alia, as "an adjunct; an appendage; [...] garden [...]". At least in the context of fenced backyard, the fact that § 47-8-3 defines dwelling unit and premises separately does not exclude "premises" from the scope of § 47-8-15. That is because the fence is "a structure [...] or part of a structure [...] that is used as a home, residence". Indeed, the existence of the fence suggests that the backyard is intended for only that tenant's exclusive use/enjoyment, with the implications it has on tenant's privacy. | Gun control laws The moment you enter the 12 nautical miles zone of a country, you need to abide by its weapon laws. Most functioning large-caliber and fully-automatic weapons are not allowed in civilian hands globally. The moment the ship leaves the 12 nautical miles zone, the country law of its flag applies, so unless you happen to start in the US with a duly registered curio/relic deck gun with proper stamps... you'll have a hard time being allowed to have the thing on board in the first place, and entering any other country's water is pretty much violating their gun control laws and gun import laws. Ship hulls don't support them. That deck gun there is a type of Bofors 40mm L/60 twin mounting - 40x311mmR. That means, its installation weighs upwards of half a ton, as that's the smallest carriage setup according to Wikipedia. Navweapons helpfully provides gun weights of roundabout half a ton per gun. That puts the minimum weight at about that of a PAK 40, but as Navweapons tells us, a US Mark 1 Twin clocks in at 4.4 to 5.8 tons including guns. All on the one mounting spot. With the bulk they are, no fiberglass ship hull could support that much load on the gun's small footprint. It needs a steel-hulled superyacht to even bear the deck load of such an installation. If your ship is the size of a coastguard or navy vessel, it probably is such a ship redesigned, a commercial fishing boat (similar specs), a cargo vessel, a large cruise vessel, or built to your specifications from the ground up. | Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display. | Much of "the woods" is owned by the US government, where your chances of any degree of success are highly variable. It is extremely unlikely that you can get away with it at all on a military base or in a national park. You may be able to get away with it for longer on Forest Service land (legally speaking, you're supposed to move along after 14 days), but if you're looking for a permanent legal claim to the land, that will not happen without an act of Congress. If public domain land has valuable minerals which you exploit, you may be able to chop down trees and build a cabin, but until Congress lifts the moratorium on mining claims patents, you cannot gain title to the land. (Public domain land is land not set aside for a specific purpose, such as a national park or wilderness area). Another possibility is to seize the land through adverse possession, as long as you satisfy the requirements for such an action in the state in question. Chopping down trees and building a cabin probably satisfy the requirements of actual possession, openness and notoriety. You would have to continuously live there for 5-30 years, depending on state, and have to have exclusive use of the land. If you get found and the owner tells you to leave (whether or not they get a court order), or if they say "I'll let you stay for a while", or they do a bit of landscaping, then you can't take the land (or, the clock restarts). There are a number of state-specific quirks such as whether you have to believe that the land is actually yours. Also, you can't dispossess a government. At some point, you will have to deal with the county, since you built the cabin without a permit. |
In the USA can a child legally authorize a search of a residence he lives in? Let's say the police want to search a location they don't have a warrant to search and don't believe the owner of the property would consent to a search. So they wait until the owner has left and ask the owner's child to enter the property to search it. In my home state a child as young as 8 can be left alone, but it's unlikely a child that young would have any idea he could refuse a search from police if they showed up and demanded to do so. Could such a search authorized by a child be upheld by the courts? Is there some cutoff for age before a child is old enough to be able to authorize a search of a home he resides in? | The central legal question would be whether the minor has the capacity and authority to consent to a search: in the context of search law, the police would have to have a reasonable belief that both are the case. It is not reasonable to believe that an 8 year old can consent to a police search, that is, a child will most likely acquiesce to a request from the authorities to conduct a search. It is as reasonable to believe that a 16 year old can give actual consent as it is to believe that an 18 year old can consent. The law leaves the matter open for those under 18, to be determined by circumstances. The other consideration, applicable to younger children, is whether the child is authorized to open the house to outsiders. So in People v. Hoxter, 75 Cal. App. 4th 406, a 16 year old child invited police in, whereupon polices obtained plain sight evidence of drug offenses by the child's father. The court found that "sufficient discretion certainly exists" by that age. There are similar results in Saavedra v. State, 622 So. 2d 952 involving a 15 year old. In contrast, in Davis v. State, 422 S.E.2d 546, a 10 year old child who was home alone called the police to report drugs in the house. The search was invalidated because although the child's mother had given him permission to call for emergency assistance if he needed help, the child had no right, absent an emergency, to invite anyone into the house while he was alone there, much less into his parents' bedroom See also People v. Jacobs, 729 P.2d 757 involving an 11 year old, for extensive discussion of the question of "joint control" and authority to permit a search, citing US v. Matlock, 415 U.S. 164 there must be some objective evidence of joint control or access to the places or items to be searched which would indicate that the person authorizing the search has the authority to do so. The mutual use of the property must be such "that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched This article has a number of citations of relevant cases, which suggests a line for police searches somewhere around 13-14 years old. But also see Lenz v. Winburn, 51 F.3d 1540 for a permitted case of consent given by a 9 year old to a guardian ad litem: the court found a 4th Amendment issue and and concluded that the search was reasonable, holding that minors can give third party consent. Fourth Amendment rights, unlike rights attendant to due process, do not guarantee a fair and impartial determination of truth; rather, they protect the interest of the citizen "to be let alone". Thus, the subject of a Fourth Amendment-violative search need not be aware of her right to refuse to give knowing and voluntary consent. However, the circumstances surrounding the consent must demonstrate that it was voluntarily given, free of duress or coercion. | In colorado, it appears that the kidnapping statutes do not apply if the act is not "knowing" or if the perpetrator lacks intent. § 18-3-301 Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping: (a) Forcibly seizes and carries any person from one place to another; or (b) Entices or persuades any person to go from one place to another; or (c) Imprisons or forcibly secretes any person. § 18-3-302 Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping. 2. Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping. § 18-3-303 Any person who knowingly confines or detains another without the other's consent and without proper legal authority commits false imprisonment. As @ohwilleke pointed out in this answer, this means that as soon as the hypothetical car thief becomes aware that the child is in the car and doesn't then act to return the child to their parents, it becomes second-degree kidnapping. (It's also possible that CO case law has interpreted the statutes differently than I'm interpreting them here, but the plain language seems to require the actual intent to take and/or confine a person illicitly.) | FERPA protects the privacy of students' records, irrespective of their age or grade level. Age is generally only relevant in determining who can assert those privacy rights. When you enter school at age 5 or whatever, your parents make your privacy decisions for you. When you turn 18, you become an "eligible student," i.e., eligible to assert or waive your privacy rights without parental oversight. | An officer is allowed to pull you over for speeding and then decline to give you a ticket for speeding. So the lack of a ticket has nothing to do with it (unless you actually weren't speeding, not even 1 MPH over.) Simply having past felonies, however, is not a reason for an officer to be able to search the car. Without a warrant, he'd need probable cause, consent, or some other exception to the warrant requirement. It's impossible for me to say what happened here. Maybe your husband had an outstanding arrest warrant? Maybe the officer saw the gun from outside the car? Maybe one of you said "OK" when he asked to search the car? Or maybe the search was illegal after all? | The 4th amendment protection against unreasonable searches is irrelevant, since it only relates to governmental searches. There may be "shopkeeper privilege" laws in your state that enable a detention. Ordinarily, you cannot be arrested by a person – that would be assault and false arrest. However, a state can enact an exception, such as Washington's RCW 4.24.220, which says In any civil action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer or by the owner of the mercantile establishment, his or her authorized employee or agent, and that such peace officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit larceny or shoplifting on such premises of such merchandise. As used in this section, "reasonable grounds" shall include, but not be limited to, knowledge that a person has concealed possession of unpurchased merchandise of a mercantile establishment, and a "reasonable time" shall mean the time necessary to permit the person detained to make a statement or to refuse to make a statement, and the time necessary to examine employees and records of the mercantile establishment relative to the ownership of the merchandise. Speaking of Walmart, here is a petition regarding a lawsuit against Walmart over such an event, where a shopper failed to stop to respond to exit security, resulting in her being physically stopped. A lawsuit (assault, unlawful imprisonment, outrage) ensued. The bottom line was that the shopkeeper's privilege is a valid defense against a lawsuit to the effect that a shopper does not want to comply with a request to prove that they are not stealing goods. | The fundamental question is whether children can own property: they clearly can. See Cyclopedia of Law and Procedure (I improved the link so it can be more easily read). As a general rule any property acquired by the child in any way except by its own labor or services belongs to the child, and not to the parent McClosky v. Cyphert, 3 Casey (27 Pa.) 220 The right of an infant to be the owner of property is as clear and as well protected as that of a person who has arrived at full age. When anything is given to an infant to be held by him in his own right, he has the title to it, and the parent, guardian or master has in law no more right to take it (for any purpose beyond safekeeping) than a stranger. Wheeler v. R. Co., 31 Kan. 640, 3 P. 297, 300: As a matter of law a minor may own property the same as any other person. He may obtain it by inheritance, by gift, or by purchase; and there is nothing in the law that would prevent even a father from giving property to his minor child. A father may also so emancipate his minor child as to entitle him to receive his own wages. It is probably true that where a minor child lives with his father, and is supported by him, all things given to the child in the way of support, such as clothing, for instance, would still belong to the father and not to the child. But things given by the father to the child, not in the way of support, but with the understanding that they should become the property of the child, would, undoubtedly, become the property of the child. Banks v. Conant, 14 Allen 497, the father has no title to the property of the child, nor is the capacity or right of the latter to take property or receive money by grant, gift or otherwise, except as a compensation for services, in any degree qualified or limited during minority. Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant. However, a parent does have the right to prevent their child from using or acquiring a computer, car (also prohibited statutorily in Washington), television, cell phone; they can also prevent a child from spending their savings. Parents do retain their property right in things that they give to their children for general support and maintenance, such as a pair of shoes, or books. There can also be specific statutes such as the Uniform Transfers to Minors Act (Washington version) which partially recognize this right, making it easy for a person to transfer property to a minor, where the property is in the care of a custodian, but not owned by the custodian. | Is a warrant needed for search or seizure while the garbage is still on private property, as in the garbage cans in this situation? No. The garbage cans as you describe are deposited "for the express purpose of having strangers take it", California v. Greenwood, 486 U.S. 35, 41 (1988) (citation omitted). That willful and informed act strikes any reasonable expectation of privacy. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection", Id (citations omitted). | Yes, police are allowed to touch your car or wipe snow off the windshield to view a parking permit. Indeed, if they just ticketed people because their permit could not be seen through the snow, there would be a huge public outrage. They are not allowed to search your car without permission or probable cause in an emergency, but wiping snow or touching the exterior of your car do not constitute searches. Likewise, towing companies are allowed to touch your car in order to tow it away for whatever legal reasons there are for towing a car. |
Does the government control what time it is? Does the government control what time it is? Recently, I read that the west coast states are considering dropping Daylight Savings Time. Apparently, the process is first for the states to agree, and then they have ask for permission from the federal government. I believe it was also the federal government who made the decision to adjust the dates for DST a few years ago. So that got me thinking, does the federal government have authority over what time it is? Could the federal government theoretically decide to just cancel 7:39 AM for one week and order everyone to go directly from 7:38 to 7:40? Would there be a legal issue if someone founded a cult that believes that it is just always 6:27 PM? This also seems like it could be a problem for elections either way. If the federal government can decide what time it is, could it just decide that November will never come and there will never be an election? On the other hand, if the federal government can’t decide what time it is, could a state just declare “In our state, it is 2026, and Trump is no longer president”? | 15 USC Subchapter IX gives the Secretary of Transportation powers to set rules about the 11 time zones, and those laws supersede state and local laws. Observance of Daylight Savings Time is optional for a state. This is the DST law. First, it says that at the DST changeover times, the standard time of each zone established by sections 261 to 264 of this title...shall be advanced one hour...however, (1) any State that lies entirely within one time zone may by law exempt itself from the provisions of this subsection providing for the advancement of time, but only if that law provides that the entire State (including all political subdivisions thereof) shall observe the standard time otherwise applicable during that period, and (2) any State with parts thereof in more than one time zone may by law exempt either the entire State as provided in (1) or may exempt the entire area of the State lying within any time zone. which allows a state to stay on permanent standard time (but not permanent DST). The appearance that government has to approve the change comes from the fact that states (other than Arizona, Hawaii, Guam etc) seem to want to switch to permanent DST, not standard time. The standardization of time is governed by laws passed by congress, so the government can change it, if they can pass a bill through both houses and get the president to sign. | In Texas, as in most of the US, the law is "Employment at Will". This means that an employer is free to fire people at any time, for any reason, or none, as long as it is not for one of the few reason forbidden by law, such as racial or age discrimination. Hourly employees are entitled to overtime pay in such cases, but "exempt" employees are not. Nor are they entitled to comp-time as a matter of law, that is at the option of the employer. (The question seems to imply that the employee in question was "exempt" but does not actually say so.) The only really effective recourse against that sort of "death march" is to quit and find a better job, or to threaten to do so while they still need you, unless the conditions return to acceptable ones. I have heard of people in such a situation who "get sick" every day at 5:30pm, because local law forbid requiring ill employees to work. But that is pretty much inviting an arduous and possibly expensive administrative and/or legal battle, and will depend on the specifics of the state/local law. In any case, it is too late for the person in question to try that. On the facts as stated, there might be a valid claim of age discrimination. But additional facts would be needed to establish this, and it would be in my view unwise to try it without consulting a good employment lawyer. Such a lawyer could advise exactly what must be proved and how, and what the probable chances of any recovery would be. | You can probably refuse A contract cannot be changed unilaterally unless the contract provides for unilateral change - its unlikely your contract does. In any event, the person with such a power of unilateral change has to exercise it reasonably. It is an implied term of employment contracts that the employee must obey the lawful and reasonable directions of the employer. So the question is, is the requirement to use a fingerprint time clock both lawful and reasonable? Well, at first blush, without genuine consent on your part (and "do it or get fired" is not genuine consent) this would appear to breach the Personal Information Protection and Electronic Documents Act. The biometric data of your finger is personal information and, as such, it can only be collected with your consent. A similar factual case was decided in queensland (Note: the Australian law will be different in some ways from the Canadian law but they both require consent for collection) last year in that way. | Section 2 (a) of the order says: The heads of executive departments and agencies (agencies) shall immediately take action, as appropriate and consistent with applicable law, to require compliance with CDC guidelines with respect to wearing masks, maintaining physical distance, and other public health measures by: on-duty or on-site Federal employees; on-site Federal contractors; and all persons in Federal buildings or on Federal lands. (emphasis added) It would seem that if, in future, the CDC changes its guidelines to indicate that mask wearing is no longer needed (presumably in the wake of a large decline in cases) the order would mean compliance with such revised guidelines, and thus reduced or eliminated mask wearing, when and if that is advised. The order does not contain any dated sunset or reevaluation provision. But the President can at any time revise or rescind this or any other Executive Order. The Twitter comments could be taken as an intention to reevaluate and a hope to be able to remove, the order within 100 days. In any case Twitter comments are not legally binding, nor are press conference statements or other public statements by the President. Evert if the order had contained a fixed sunset date, the President could always issue a new order extending this one at any time. Note also that the order only instructs department heads to "take action, as appropriate and consistent with applicable law." This leaves significant room for judgement as to what is "appropriate." | The situation is that Executive Order 2020-33 is no more, and a new order, 2020-68 exists. The old orders to stay home are now copied under this order, but it may be necessary for her to re-issue (a subset of) the orders so that they are pursuant to #68 and not #33 (live by the technicality, die by the technicality). If she does not do that quickly, I expect there to be legal challenges. The law (30-403) doesn't say that orders issued pursuant to a declaration of a state of disaster expire when the authorizing declaration expires, but one can reasonably infer that that is what the legislature had in mind when this law was passed. But that is a matter for the courts to decide. Deference to the executive, which is the usual way that courts operate, would favor an interpretation where saying "All previous orders that rested on Executive Order 2020-33 now rest on this order" counts as re-issuing the same orders with a new number in the text. The law does not say that the circumstances authorizing an emergency order have to be completely different. Perhaps the legislature will revise the law in the future, but it is what it is right now. | This would require a constitutional amendment (overriding the First Amendment), which can be done in two ways. Congress can write an amendment and submit it to the states; or the states can call for a convention. None of these methods can be implemented by any number of courts. | School districts / states do generally have the power to set the curriculum including the viewpoint that will be officially conveyed. One well-known major restriction on such viewpoint restrictions is that the schools cannot restrict the free exercise of a religion, and cannot take a position on a religion. Apart from the religion third-rail, schools have pretty free reign in setting the curriculum, see Evans-Marshall v. Tipp City for one instantiation. In this case, the teacher assigned various books, including Heather Has Two Mommies, one of the books that prompted an outcry. The upshot of that case is that a teacher cannot invoke the First Amendment to override policy. This article (draft version, easier to handle) (published version, annoying footnote structure) reviews the topic, and section III covers prior cases. It notes that the cases of Lawrence, Windsor, Obergefell do not address the constitutionality of these education laws, though the reasoning in the prior cases might be applicable if there were a suit over curriculum. There is an implication that some of these rules have been enforced in the past, but most of the evidence is in the form of news stories (Beall v. London City School BOE is not available in the open). The article does engage in a somewhat deeper study of enforcement in Utah, where it was enforced (until it was repealed). Enforcement is necessarily indirect. The law require school districts to have a particular curriculum; violation would come when an individual teacher taught contrary to the prescribed curriculum. Those laws do not contain any provision like "a teacher who violates these rules gets fired", instead, punishment is via the general rule that you have to teach what is in the state-mandated curriculum. Rather than officially terminating a teacher for violating this curricular guideline, districts use vague reasons for non-renewal such as "due to problems with communication and teamwork" (from Evans-Marshall). | According to CENDI, yes the US government is able to claim copyright on works internationally. The law in question which makes US government works public domain in the US (17 U.S. Code § 105) only does so within the confines of US copyright. Since copyright protection is on a per-country basis, there's no reason that the US government couldn't assert IP rights under foreign copyright law (though I didn't go looking for an example). While the Berne Convention generally requires countries to provide foreign works the same protection as domestic works, I can think of two general reasons why US government works wouldn't fall under copyright protection in some countries: The country simply doesn't apply copyright protection to any government works (don't know how common this is). The country applies the rule of the shorter term. If they do, they aren't required to provide a longer term of protection than the country of origin does (which is nil in this case). |
Is an oral "contract" legally binding? In a comment to this question, the user @Agent_L argued that That's not an opinion, there is nothing to disagree here. From a legal point of view, a contract doesn't need a written form. It's hard to prove the existence of such contract, but it's still there Is this true, legally? If, for example, a person A offers a job to a person B orally, and person B accepts it orally, and person A records this conversation. Can person A later use this recording to sue person B if later person B doesn't want to work there? | If an offer is accepted, you have a contract Oral contracts are binding for most transactions. See What is a contract and what is required for them to be valid? However, from the circumstances, it’s not clear that there was an offer subject to acceptance. Had the wages been agreed? The hours of work? The annual leave? The sick leave? If these were undetermined then there is no contract. | Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract. | You need to be very clear with B that you intend to continue to operate A. You need to be clear whether you are to be an actual employee of B, or a hired contractor for B. If an employee, you need to agree with B how much time you can devote to A while employed by B, or to put it another way, how much time (per day, week or whatever) you are expected to devote to B before doing stuff for A. Are there to be restrictions, such as a ban on your doing things for A while at B's worksite? Above all, you need to agree on who owns what rights to both the existing A code, and any new code will be held by you, and what rights will be held by B. All the above should be in a written agreement, and you would be wise to have a lawyer draft or at least review the language. If B will not agree to this, you will have a choice to make: put A on hold while working for B, or not accept B's offer. Do not lie to B about what you are doing with A. Oh, and if you had any sort of non-compete agreement at the job you quit four months ago (let's call them C) be sure that you comply with it, or are prepared to fight it. If there is any question, this is another area where you would do well to consult a lawyer. Many non-compete agreements claim more than local law allows, and are not enforceable. Many others are very much enforceable. It depends on the wording of the agreement, and the provisions of the law where you are located. Also, do not use any confidential data from C without C's written permission. | What if somebody copies your signature on a contract that says you can't sue them? what can the judge do to stop this paradox? I will assume that by "copying the signature" you mean "without the person's consent". In that case, the contract is void and consequently unenforceable. However, it would need to be proved that the person whose signature was unlawfully used did not intend to be a party to that contract. For a contract to be valid, the parties must have knowingly and willfully entered it, whether it is via a document or through their subsequent conduct/actions. False pretenses, identity theft, and akin offenses preclude these two essential requirements of any contract. Moreover, if the person who forged the signature is a party to the contract, then that unlawful act clearly contradicts the prerequisite "covenant of good faith and fair dealing" that is presumed in contracts. The remedies or actionability available to a person whose signature has been forged depend on the laws of each jurisdiction. | To expand on Dale's answer, the general principle applying to acceptance are as follows: The offeree's clear and absolute expression of intention and assent must be made in response to, and must exactly match, the terms of the offer. This expression must be communicated with the offeror in order to be effective. This means that a verbal contract is just as binding as a written one, with or without initial or signature. The importance of the initial or signature, as correctly identified by Dale is to be able to hold the offeree to account if a breach of the contract follows. Importantly, a contract can stipulate in what form the expression of acceptance must take. In the case of unilateral contracts, such as in adverts (see Carlill v Carbolic Smoke Ball Co. [1893], for a relevant item of UK case law), no expression of acceptance is needed to be received by the offeror - merely attempting to perform the act has been held as adequate acceptance. | Those two situations should be legally equivalent. The key thing is that you intend to agree to the contract, and are taking physical steps that are intended to manifest your agreement. If you had added an electronic signature to the PDF file, and transmitted this to the company, it should also be legally equivalent, and just as binding as the pen and paper method. | 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. | Sorry, what did I agree to? NDA means New Drug Application, right? Or is it Notre Dame Academy? Maybe it's Nebraska Dressage Association - don't want to cross those guys, their horses are mean. When you are trying to form a contract with someone, it's very important that you and they are talking about the same thing. What can't I disclose? That I had a phone call? What I said? What you said? Only the confidential bits? If so, what are they? Can I tell my business partner? My lawyer? My secretary? The IRS? Another important thing about making a contract is to agree on the terms. Post-facto contracts are not a thing After you paint my fence, you can't demand payment. We have to enter into a contract before the thing that happened happens. Elements of the call might be confidential anyway I am bound to respect confidences that were entrusted to me where a) the information is confidential b) it was imparted to me in a situation of confidence and c) disclosing it would cause harm. We don't need a Non-Destructive Analysis to document that. |
What are my obligations when a merchant ships me the purchased item and issues a refund? I recently ordered a large (80-pound, big box) and expensive ($300-400) piece of equipment via Amazon from a third party. After a week I was told the item was out of stock and they were canceling the order. I placed an order for the same item again via Amazon from a different third party (at a higher price and much later shipping date). Today, I received shipping notification that a package from the manufacturer and with the expected weight will arrive at a time that matches the first order. I also received notification from my bank that a refund has been issued for an amount that matches the first order. While I can't yet rule out the idea that the second order has shipped 6 weeks ahead of schedule, the assumption I am making is that the first order has actually both shipped and been refunded. Thus, I expect to have an item that I haven't actually paid for show up at my house in less than a week. Returning the item would be quite expensive. I wouldn't mind paying the first merchant their original price as long as I can cancel my second order...but that's not a given yet. It's also not something I'm willing to do until the first one actually arrives. I have no interest in having two of these items, or in paying to ship one of them back. Am I obligated to either pay to ship the item back or to pay the first merchant for the item? This question is similar with these notable differences. I never asked for a refund; the seller issued one entirely on their own. This item is both expensive to purchase and expensive to ship. I'm in the US. | From a legal POV, we can mostly remove the fact that you re-orderd the item from someone else and now don't know whether the expected shipment is in fulfillment of contract 1 or contract 2. Assume that there was only one order, the seller or manufacturer (it could be either) believed they were out of stock, then cancelled the order and issued a refund (which you did not refuse to accept). That is the end of the contract -- it has been cancelled. They cannot unilaterally create a new contract that you are bound to. That does not mean you get a free grape crusher (or similar item) - that would be "unjust enrichment". There are a number of steps you could taks, apart from just paying them again, or making them sue you to get their money. One is that you can allow them to pick it up and return it, after it is delivered. You can also contact "them" (perhaps the manufacturer, perhaps the intermediary company) and tell them so that they can stop the shipment. They may advise you to refuse the package so that the shipper sends it back (not totally unproblematic). Given that it is possible that the item being shipped is in fulfillment of contract 2, it is important to not leap to a uncertain conclusion. To complicate the matter further, Amazon is a party to this deal, so this may be Amazon's error. They will cancel orders and refund payments for various reasons, for example a vendor failing to provide certification documentation in a particular format. What matters in this case is that you are not obligated to pay twice or to incur expenses for returning the item. | Online stores shipping stuff internationally usually include a clause in their Terms along the lines "buyer is responsible for all clearance/import fees and taxes". What those fees and taxes are depends on: destination country (the actual tax) carrier (e.g. FedEx) (clearance charges as the carrier also acts as your customs broker) value and, sometimes, what the item is. The onus is on the buyer to check all those charges in advance before deciding to buy. It would have been naive to assume that, when you buy internationally, all that you pay is what the store gets plus import tax (unless you're ready to be present at the customs when the item arrives, fill forms and liaise with them yourself). | am I required to send the stuff back? No, but you should be able to prove that you met the conditions of the original contract between you two. There is no gift. There is a compensation that forms part of the contract between the offeror and you. The offeror's preference to call it a "gift" does not change the legal fact that his offer and your acceptance to complete Nightwave Season 2 constitutes the formation of a contract. From that standpoint, you are entitled to keep the items he mailed to you as long as you honor your part in that contract. You are right by conjecturing that a party is not allowed to unilaterally alter a contract. Any modification has to be agreed upon by all parties to that contract. However, a consent or agreement may be inferred from the parties' subsequent conduct. Hence the best way to pre-empt or supersede any such inference consists of letting that party know that you disapprove of the belated alteration(s). The absence of a written agreement can only complicate matters, though, since it appears that neither party has an objective, directly credible way to prove the terms of the original contract. Perhaps such terms can be deduced from the subsequent emails that he has been sending you, but that is impossible to ascertain without knowing the wording of the subsequent communications between you two. Lastly, enforceability of your contract is less clear if completing Nightwave Season 2 through someone else's performance amounts to an unlawful act. Not being knowledgeable of the terms and conditions of that game (?), I am unable to state with certainty whether the offeror could lawfully recover from you the items he mailed. | No, you could not have prevented them from collecting their belongings But you could have sued for trespass Unless those boxes were part of the contract for sale, they remain the vendor’s property and just like you can’t withhold your mate’s trombone that he accidentally left after that great party, you can’t withhold the vendor’s boxes - that’s called “stealing”. What you could (should?) have done is refuse to settle until the boxes were removed. As the vendor was in breach, if you suffered any unmitigated loss as a result of the delay, you would be entitled to recover it. This is one of the reasons why you should inspect on the day of settlement. Given that you accepted the breach, even though the vendor’s boxes were technically trespassing, they could reasonably raise the defense that they had implicit permission- at least for a reasonable time. “A few days” is a reasonable time. | Yes The document is called an invoice and the customer has taken the clothing “on account”. Most businesses of any size outside the retail sector operate this way. Remember that you are effectively lending your customer money. What are the terms of this loan? What are you going to do when/if they don’t pay? You need to deal with this either in your sale contract or a separate credit contract. | There may be violations of consumer protection and/or advertising statutes here by the online store, but the common law position is that: The website's owner is making an invitation to treat Based on that, you are making an offer The contract comes into place when the website's owner accepts your offer. The time of contract formation is "when the parties give objective manifestation of an intent to form the contract." You would need to read the site very carefully, in particular their terms and conditions, acknowledgement page and/or email to see if they are actually accepting your offer or if there are conditions attached. If there is no clear, unconditional acceptance then there is no contract at that time; this applies even if you have paid for the goods. If this is the case (and I strongly suspect that it would be for most online stores), then their acceptance of your offer and the formation of the contract probably does not come into effect until they "give objective manifestation of an intent to form the contract" by shipping the goods. Up until that time there is no contract and their only obligation to you is to promptly refund your money. | Does returning an illegal product back to the seller for the refund make one liable to said product distribution? The offence, in the USA, relating to posting counterfeit goods (such as bootleg copies of copyrighted items) is at 18 U.S. Code § 2320 (a)(1) Whoever intentionally - traffics in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services ... (f)(5) the term “traffic” means to transport, transfer, or otherwise dispose of, to another, for purposes of commercial advantage or private financial gain, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of My reading of (f)(5), is that the element of possession with intent refers back to the transportation for advantage or gain which would not be the case for a straight refund, so it may be lawful to return the goods - subject to any prohibitions imposed by the postal carrier. However, there is no requirement to return counterfeit goods to the seller according to EBay's Money Back Guarantee Counterfeit items If a buyer reports that an item is counterfeit, and there are strong indicators that the item is counterfeit, we may not require the buyer to return the item to the seller. The buyer agrees to cooperate with us to ensure proper disposal of the item. In such instances, we refund the buyer for the full cost of the item and original shipping, and the seller is required to reimburse us for the refund. The buyer may not sell the item on eBay or elsewhere. | is this even legal? It is legal, but at the same time the contract is voidable by you. This means that if the buyer rejects the EULA, he is entitled to return the unused product and be reimbursed. Obviously once the buyer has used the product, the conclusion will be that he accepted the EULA and therefore no longer can void the contract. The buyer's entitlement to rescind the contract compensates for the fact that he was not duly informed about the conditions prior to making the purchase. |
Does the "Adelsaufhebungsgesetz" apply to Austrian citizens world wide? I just stumbled accross the English(Ferdinand Zvonimir von Habsburg) and German(Ferdinand Zvonimir Habsburg-Lothringen) version of a descendant of the Austrian Nobility. In the English version the name of the person includes a von (engl. of). But I thought the Adelsaufhebungsgesetz made it illegal for him and his family to have the von in his name. So my question: Is this ban only valid in Austria or should it be changed on wikipedia? | The Adelsaufhebungsgesetz removed “von” and other nobility-related honorifics from names, and made it illegal for Austrian citizens to use such honorifics as part of their own name. It is not illegal for other people to use such nobility indicators, even when addressing no-longer-noble Austrian citizens. Thus, it is not illegal for the English Wikipedia to use this name. Wikipedia also notes the full name without the “von” in the sidebar, although the intro text is arguably misleading. But from a Wikipedia editorial perspective, it would matter by which name he is generally known, even if it isn't the legal name. | In Austria they have a law about "Kreditschädigung" (website from the Austrian government, "credit damage") translated by Google as: Because of credit damage, a person is liable to prosecution if he or she asserts incorrect facts and thereby harms or endangers the credit, the acquisition or professional advancement of another person. A prison sentence of up to six months or a fine of up to 360 daily rates is provided for the offense of credit damage. If you setup a webpage which lists things which might harm somebody's business, you have to proof that every single claim you make is correct (not just your individual experience). So if you have solid proof for each of your claims of your Q&A, you might win a probable law suite. The way you wrote it, it might be difficult to proof because it seems to be your personal experience. See also here for details. (in German). | In the EU, that's the general rule going forward, but there are two big exceptions I'm aware of. The general rule from Article 1(1) of the Copyright Term Directive: The rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public. Note that this is in fact an extension on the Berne Convention, which requires minimum 50 years after death. Big exception #1: Moral rights. Article 9 specifically states the directive does not apply to moral rights. These vary by country, but in the EU, moral rights have the tendency of lasting forever, and most often includes the right to attribution and a right against action which to the author is "prejudicial to his honor or reputation" (see Berne Convention Article 6bis). Therefore, as a rule, you cannot do "whatever you want" with an image (though sale is generally OK – that's an economic right, not a moral right). Big exception #2: Pre-existing longer term. Article 10(1) leaves intact pre-existing longer term limits which Member States had: Where a term of protection which is longer than the corresponding term provided for by this Directive was already running in a Member State on 1 July 1995, this Directive shall not have the effect of shortening that term of protection in that Member State. This of course means, you can't actually 100% rely on this "70 years after death" rule in the EU until 1 July 20661. However, most EU countries did have 70 years anyways. That said there are some interesting exceptions. For example, France has mort pour la France which extends copyright an additional 30 years for those who died on active military service. This means for French citizens who died before 1 July 1995 on active military service, this directive does not apply, and they still have up to 100 years of post-mortem copyright protection. As an aside, Wikipedia has a fairly detailed list on country copyright lengths. Not 2065, because per Article 8, the rule is actually the January 1st after 70 years after death. Then you have to wait till July 1 to be sure the rule 100% applies, because for some reason, they made the Article 10(1) exception start in the middle of the year. | It seems that your friend is taking part in a multi-level marketing scheme. However, this does not necessarily exclude a pyramid or snow ball scheme. Both can be illegal in Germany and Switzerland under the respective unfair business practices codes, because the systems do not rely on the sales of goods and services, but on the continuous recruitment of further sales persons. To clarify whether your friend's system is illegal, you could report the scheme to the competent watchdogs. In Germany the "Zentrale zur Bekämpfung unlauteren Wettbewerbs" in Bad Homburg is recommendable. As the company is operating from Switzerland, German law not be applicable without more. Therefore also contacting the Swiss authorities may be advisable. This seems to be the "Staatssekretariat für Wirtschaft SECO" in Bern. | As user6726 notes in an answer, the page you link to derives from 26 USC 7701. However, it does not reproduce the text accurately. There, "United States person" is defined at section 7701(a)(30), and it notably lacks anything corresponding to "any other person that is not a foreign person." It's possible that that language is motivated by some court decision, but it's also possible that someone just added it for the sake of symmetry with the definition of "foreign person" without thinking about the logical paradox that it might create. Looking at section 7701, I don't see any explicit mention of US non-citizen nationals. It appears that such a person who does not live in one of the 50 states or the District of Columbia falls under the definition of nonresident alien at 7701(b)(1)(B) even though such a person is explicitly not an alien under the Immigration and Nationality Act. I do not see any regulations correcting this oversight, but I suppose that in practice such people are indeed treated as US citizens. I don't know enough about the classification of nonhuman legal persons as foreign or domestic to have any ideas about whether there are similar ambiguities there. | 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. | I don't know any specific on the US law, but a special protection of the Swiss coat of arms is very widespread. This comes from a provision in Art. 53 § 2 of the First Geneva Convention 1949: By reason of the tribute paid to Switzerland by the adoption of the reversed Federal colours, and of the confusion which may arise between the arms of Switzerland and the distinctive emblem of the Convention, the use by private individuals, societies or firms, of the arms of the Swiss Confederation, or of marks constituting an imitation thereof, whether as trademarks or commercial marks, or as parts of such marks, or for a purpose contrary to commercial honesty, or in circumstances capable of wounding Swiss national sentiment, shall be prohibited at all times. Because of the connection of the Red Cross and the Swiss coat of arms the US is obliged by international public law to prohibit the commercial use of that arms. I'm surprised to hear that law was repealed. Maybe it was transferred to some other place in the code? Often it is regulated next to the prohibition of the misuse of the Red Cross. | 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. |
Am i responsible for fees from FedEx i was not made aware of and did not agree to pay? last month I ordered a computer from an American company that shipped it through FedEx. I paid for shipping when I purchased the computer and if I remember right I also paid a small import tax when the package was in customs. Today I received a bill from FedEx with a massive charge on it that included the following charges Advancement Fee $10.53 HST on ADV/Ancillary Services Fees $10.25 Clearance Entry Fee $75.03 Canada HST $41.30 The Canada HST I found out I do have to pay but the rest of the charges don't look like any kind of legitimate government charges and I was completely unaware of them. Am I legally obligated to pay these random fees when I in no way agreed to pay them? I didn't even know there was anything owing on the package, I was told everything was paid for and I just had to wait. They were also supposed to get my signature at the door for proof of delivery but they failed to do that as well, they just left it at the door and left without even knocking. from what I know of Canadian law since I was not made aware of these fees I am not responsible for any of them besides the government tax, but I am concerned i may be wrong and I'm unsure of what to do. | Online stores shipping stuff internationally usually include a clause in their Terms along the lines "buyer is responsible for all clearance/import fees and taxes". What those fees and taxes are depends on: destination country (the actual tax) carrier (e.g. FedEx) (clearance charges as the carrier also acts as your customs broker) value and, sometimes, what the item is. The onus is on the buyer to check all those charges in advance before deciding to buy. It would have been naive to assume that, when you buy internationally, all that you pay is what the store gets plus import tax (unless you're ready to be present at the customs when the item arrives, fill forms and liaise with them yourself). | If your friend uses your address for mail, then it is his responsibility to ensure that he has ready access to the post - that is, generally, by providing the address to businesses, courts, etc, he warrants that he has access to the address and therefore the post. Depending on your arrangement with your friend, you may have a duty to notify him of the arrival of the mail, and/or to deliver it to him, and/or to forward it to him. Again, depending on whether the arrangement forms a legally binding contract, your duty may or may not be legally enforceable, and your friend may be able to seek indemnity or damages from you if he suffered adverse legal consequences as a result of the mail arriving and your failure to notify/deliver/forward. If he ignores it, the liability is likely to be his and his alone, subject to the above. It is unlikely to affect your visa or its extension but it's best to engage a solicitor to review your circumstances and advise you on this. As far as your credit score (though my understanding is that credit scores are evaluated by individual institutions and not provided by any of the credit reporting bureaus) will be affected, it would only be affected if your friend committed fraud in your name or became a debtor in your name. Letting a friend's mail be delivered to you is not a criminal offence that I've been able to identify. | The order itself is here. It applies to "any United States person", which includes citizens, LPRs, entities with a US basis, and any other person in the US including tourists. It applies to transactions, and not static possession. There is no exception to the effect that "you can trade as long as it's not on the NYSE", and it says Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the prohibitions set forth in this order is prohibited The order is not just directed at brokers, or the NYSE, it applies to everybody / everything everywhere, if you are a US person. Apparently there was some unclarity on the OTC question, which was clarified by the Office of Foreign Assets Control, to the effect that it includes OTC trading. | In the UK it is an offence to cause a computer to gain unauthorised access to any program or data held in any computer (s1 Computer Misuse Act 1990). It seems likely that other European jurisdictions have similar laws. Certainly Germany does: Penal Code 202a data espionage (German text - English translation). (I mention Germany because the linked thread does.) It might constitute theft in the jurisdiction if the finder did not take reasonable steps to find the owner - which may include informing the police of the find. Depending on the jurisdiction it might count as 'treasure' or abandoned property such that the finder is obliged to inform the authorities (the jurisdiction has the presumption of ownership of abandoned or lost property - e.g. Scotland), which then decide what to do with it. Legally speaking it seems to me that, to declare it legal, we have to get over such hurdles. [edit] There seems to be some dispute in the comments that cryptocurrency is subject to any regulation, counts as property, is something of value or is something that is owned and can be stolen, such that the person in the questioner's scenario could be held to account under the law for his behaviour. Aren't they merely numbers? No - plainly they do have value because people trade them with currency and goods and services. The UK's tax authority, HMRC, "does not consider cryptoassets to be currency or money" but sees them as having economic value because "they can be 'turned to account' - for example, exchanging them for goods, services, fiat currency (that is money declared by a government to be legal tender) or other tokens". They are "a new type of intangible asset". Individuals are liable "to pay UK tax if they are a UK resident and carry out a transaction with their tokens which is subject to UK tax". They are liable for "Income Tax and National Insurance contributions on cryptoassets which they receive from their employer as a form of non-cash payment [or from] mining, transaction confirmation or airdrops." (HMRC cryptoassets for individuals) Are they property? Something that can be owned, something that can be dishonestly appropriate (i.e. stolen)? That's the interesting dispute. Recently, the High Court of England and Wales ruled in a bitcoin ransomware-related case that "for the purpose of granting an interim injunction in the form of an interim proprietary injunction ... crypto currencies are a form of property capable of being the subject of a proprietary injunction". In that judgment there is some discussion of the authorities for considering or deciding they are property. ([2019] EWHC 3556 (Comm)) read from para 50 if not the whole judgment. In at least two other cryptocurrency-related cases the High Court treated the cryptocurrency as property. Vorotyntseva v Money-4 Limited, trading as Nebeus.com [2018] EWHC 2598 (Ch) and Liam David Robertson v Persons Unknown 2019. There was also a suggestion in the comments that the police would not understand and would not be interested. But there are several jurisdictions where people have been investigated, arrested, prosecuted and convicted of crimes relating to cryptocurrencies. A simple internet search for bitcoin theft, fraud or money laundering will result in some reports. In any case their interest or lack of it is irrelevant to what the law may say. | This smells strongly of "bait and switch" fraud: offer a product at an attractive price, then "discover" that the product is not really available at that price. By that time the customer has sunk costs and is therefore willing to accept an alternative product with a lower quality or higher price than was originally promised. Looking at the homepage for ".club" it seems that they do indeed offer different prices for different names. I see "examples.club" listed at $101 while "model.club" is listed at $19,000. From your post it sounds like your hosting company have cancelled your purchase and will not actually charge you the higher fee. This is, as you say, a very dodgy practice. You might want to move to another company which is more up-front about unknown costs for such domains. If you have already paid the £7.99 then you are entitled to that money back. You do not have to accept a different name: that would be a classic bait-and-switch scam. They are NOT entitled to charge you a higher price unless you agree to it. If they won't return your money or try to charge you more then you should drop them like a hot brick and report them for fraud. Edit in response to question edit The situation is not clear-cut, and will probably depend on the exact wording in the company's terms and conditions to determine exactly when the contract was formed. An article about a similar case in The Telegraph had this to say: The legally binding contract is complete when a retailer accepts an order. However, acceptance does not necessarily happen at the point of order. Even the confirmation email may not be an acceptance. Some retailers reserve the right to cancel an order up to the point of delivery. It is therefore important to carefully check the retailer’s terms and conditions (which must be available on their website) and emails – if a retailer simply acknowledges an order, there may be no contract at that point. Lots of companies have T&Cs saying that there isn't a contract until they actually deliver the item, so if they don't deliver then they are not in breach of contract. The company may also be able to argue that its offered price was so grossly disproportionate that it was an obvious mistake and therefore they should not be held to it. UK contract law is based on the concept of a "meeting of minds" where two people have the same view of the contract and agree to it, but this is rather problematic when one of the minds was represented by a buggy computer. You might be able to counter this by showing that they are still doing it, and hence this is an ongoing business practice rather than an honest mistake. Ultimately your only options, assuming they decline to honour the purchase, are to either accept the refund or take them to court requesting an order of specific performance. | From your account, you seem to have entered into a verbal contract for this extra work to be done without agreeing a price. According to this article, Canadian courts will assume that a contract contains "implied" terms "on the basis of the presumed intentions of the parties where necessary to give business efficacy to the contract". To put that in English, these are terms that must be there because otherwise the story wouldn't make sense. In this case the implied term is that the lawyer will be paid a reasonable amount for his work, as it would be unreasonable to expect him to do this for free. Lawyers generally bill by the hour, so a reasonable amount would be the time he spent multiplied by his usual hourly fee. If that is what he has billed you, then I'm afraid you owe him the money. | If you are going to sue, and can prove they overcharged - consider going to the small claims court. It should cost you $15 + time - unless you loose quite badly - in which case its conceivable the court could award costs against you (I don't know if this is true of the small claims court in NY). You can represent yourself, so no heavy legal bills. It will take a a few hours of your time to prepare and have the hearing. Of-course, very often, just by filing you will get the opposing party to sort out the issue - and probably won't even need to go to court. | Is It Legally Binding? While their customer service sucks, your oral authorization of the charge is legally binding (I take payments that way almost every day in my own business, it isn't an unusual business practice in small professional businesses). You authorize oral authorization of payments over the phone in the credit card agreement that your credit card company sends you every year that you don't read and throw away. The provider has to collect more information for a credit card payment over the phone than they do for an in person swipe in a credit card machine (e.g. your credit card billing address) and they are fully responsible for wrongful charges if they deal with an imposter. By regularly checking your credit card statements, you can confirm that no incorrect charges are present. Tax Issues If you want to take a tax deduction for non-reimbursed medical expenses, you simply need to tote up the amounts your are entitled to from your own records, and put it in the appropriate box on your tax forms. You don't have to attach documentation to your return. If the IRS disputes your payment, you can offer up your credit card statements and your photograph of the receipts, and if necessary, medical records to show that you received the services, to show that the payment really happened and are deductible. Your credit card company's records, reflected in your monthly credit card statements, are considered very reliable for tax purposes. You have the burden of proving that the expense was incurred and is of a type that qualifies for a deduction by a preponderance of the evidence in the event that there is a dispute that is litigated, which means that you must show that it is more likely than not that you incurred a deductible expense of that kind in that amount in that tax year. Privacy Issues While there are financial information privacy issues associated with this transaction, HIPAA, which covers medical records, normally wouldn't apply to a credit card payment that indicates the person paid, the person paying, the account, the amount and the date, but not a description of the medical services provided or to whom they were provided, which is what is normally on a credit card receipt. The financial privacy issues are also partially addressed by the provider's merchant agreement with the credit card company which contains terms requiring them to maintain certain kinds of security with respect to your financial information (which is not to say that the provider actually follows all of the requirements of their merchant agreement scrupulously, which is why data breaches happen all the time in businesses both large and small). |
Can someone be forbidden to use a public service without the specification of an offence? I believe the manager of a private service can arbitrarily decide not to serve someone. But what about a public service, like a public health clinic? | In normal commercial situations there is the principle of freedom of contract where parties are free to contract with whom they choose. As a result of this principle, they are also free to not choose to contract with whom they choose (i.e. refuse to serve someone). There are limits, such as if it could be argued that by doing so contravenes other laws, such as those against discrimination on the basis of race, age or gender for example. When a public entity is involved, it is a branch of government and is governed by the rules that define the relationship between the individual and the state - the constitution, so principles of constitutional law apply. Decisions made by public bodies can therefore be subject to judicial review, where an affected party or someone with sufficient standing can take the matter to court to be reviewed by a judge. | No. There are plenty of Quebecois laws covering what you must have water for (food prep, bathrooms, etc) and that if you are using the water in any fashion that it might come in contact with a human mouth (i.e. food preparation, etc) it must be drinking water (as defined in the document I linked), but no such laws requiring free distribution of drinking water on request by restaurants. It's worth noting, I suppose, that tap water must be provided by restaurants in their bathrooms for the washing of hands and that said water must be of drinking water quality, but they are not required to offer it in a glass, free of charge. Anecdotally, I will also note that there are laws in several other Canadian jurisdictions that DO require free drinking water on request, but those laws also do not stipulate the glass must be provided for free. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | There is a saying that you can't sue city hall: that is applicable here. Governments enjoy sovereign immunity, and cannot be sued for their errors of judgment unless they specifically allow it. Safety regulations are an example of a situation where the government hold all of the power and shoulders none of the responsibility. If a government forbids sale or use of a substance on some grounds (could be safety, could be economic impact, could be something about preventing the moral decay of society), and the grounds later turns to be false, you cannot sue the government because of lost business opportunities. Generally speaking, that which is not prohibited is allowed, so there would have to be an affirmative duty for the government to prevent all forms of harm. If there were such a legal duty, there is a miniscule legal foundation for suing the government for shirking its duty. That is not a completely hypothetical possibility, in that the state of Washington imposes a constitutional duty on the legislature to provide public education, and the Supreme Court has done things to enforce this duty (the contempt of court fines are up in the realm of $80 million). Since there is no jurisdiction that imposes a duty on the government to absolutely prevent all harm, you won't be able to sue the government if they fail to outlaw a thing that is eventually proven to harm someone. | This is a broad question about the powers of the police in England and Wales. I have been unable to find any UK legislation which directly addresses 'do not cross' tape (also known as police tape, crime scene tape or barricade tape). However, the police have broad statutory and common law powers, and ignoring 'do not cross' tape could be an offence in the same way as ignoring other police orders. In Director of Public Prosecutions v Morrison [2003] EWHC 683 (Admin), the High Court decided that at common law, the police have the power to cordon off a crime scene. Police had cordoned off an area to preserve evidence using tape labelled "Police: Do not Cross" [9]. The prosecution's case against the respondent was that, having been told not to enter the cordoned area, he challenged the police right to prohibit him from entering the area [10]. There was a dispute as to whether the respondent did cross the tape and other issues, but police ultimately arrested him for disorderly conduct [29]. The respondent was convicted in the Magistrates' Court of disorderly conduct under s 5 of the Public Order Act 1986 and wilful obstruction of a police constable under s 89(2) of the Police Act 1996 [1]. His conviction was set aside on appeal to the Crown Court, which found that the only statutory authority for setting up a cordon is in the Terrorism Act 2000, and the cordon had been established without the consent of the land owner or a warrant [17]. The relevant question for the High Court was: Was the Wood Green Crown Court wrong in law to hold that the Metropolitan Police on the evidence in this case had no lawful power or authority to close the public right of way over private premises by a cordon and forcibly prohibit the Defendant from using that right of way on foot against his will [4]? The answer is yes. The police have the power to cordon off a crime scene, but they must act reasonably: [W]hen seeking to investigate crime police officers do not have an unfettered right to restrict movements on private land ... but ... [a]s Lord Denning said [in Ghani v Jones [1970] 1 QB 693] "the police should be able to do whatever is necessary and reasonable to preserve the evidence of the crime" ... provided [the police] do not go beyond what is reasonable in the circumstances, routine scenes of crime searches may assume the owner's consent ... In the present case the police were entitled to assume consent ... we believe that consent could not lawfully be withheld [22]–[23]. So the police have the power to restrict movements on private land and can use this power to cordon off a crime scene. The police can arrest someone who unlawfully enters a crime scene, which may amount to the offence of wilful obstruction. It is harder to answer the hypothetical question where there is nobody around to enforce the cordon. This is a broader question about land rights; the answer would depend on who was trying to enforce the cordon and why. | Not for unqualified use This falls under “possession with intent to dispense”. It’s OK if the first aid kit is for use by: a practitioner authorised to dispense drugs (a doctor, nurse practitioner, paramedic or pharmacist) a person registered under the quoted chapter (which can include first-aid officers in remote or isolated locations, like ships) the specific person for whom the medication was prescribed | An example of where this is not allowed is Seattle, WA. Municipal code SMC 12A.06.025 states It is unlawful for any person to intentionally fight with another person in a public place and thereby create a substantial risk of: Injury to a person who is not actively participating in the fight; or Damage to the property of a person who is not actively participating in the fight. B. In any prosecution under subsection A of this Section 12A.06.025, it is an affirmative defense that: The fight was duly licensed or authorized by law; or The person was acting in self-defense. You can see from adjacent sections that "mutual combat" is not legal. I recognize that there is this meme about Seattle, but this is a distortion of an incident when the police turned a blind eye to a fight. We have police issues, no doubt: there is nothing legal about such fights. Of course, for a licensed event, you can "fight". Of course the potential legality depends on how mutual combat is defined. Illinois v. Austin 133 Ill.2d 118 and citations therein, subsequently Illinois v. Thompson, 821 NE 2d 664 define it thus: Mutual combat is a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. Similar death-definitions are found in Donaldson v. State, 289 SE 2d 242, Iowa v. Spates, 779 NW 2d 770. The law looks askance of such behavior. For the sake of clarity, a term other than "mutual combat" would be preferable. | The Secret Service is primarily concerned with protecting the people and information they oversee, not enforcing laws. They have the power to arrest someone for any unlawful conduct, but unless a drug user is presenting as a threat to a protectee, they are unlikely to be arrested by the Secret Service. More likely the Service would simply escort the person off the premises and refer the matter to the DC Metro Police to handle. Edit: Such a case would not be turned over to the US Capitol Police (as originally written) It would most likely be referred to the DC Metropolitan Police Department.Corrected my answer above. |
landlord having neighbor stalk the property We recently rented a house and the day we moved in we were told the neighbor will do the yard work and take care of the home. Also in the lease the landlord should give 24 hour notice before appearance but nothing about this neighbor we didn't know about. Nowhere in the lease does it say someone would do the yard work. The problem is the neighbor has a couple domestic abuse charges in his past and he stays in the yard for hours looking in windows and snooping. No exaggeration - the first two weeks we moved in, the neighbor was in the yard at least 5 hours a day every day. We look out the window and the neighbor and some older man just standing outside looking at the house. The neighbor is a really large man about 6'5" and very creepy. We are always on edge and don't feel safe having him in the yard constantly. We put up cameras to video tape the stalking. We have our own mower and can take care of the yard ourselves, but the landlord refuses and defends the neighbors actions. There is always a new excuse to have the neighbor enter the yard. Gutters, fertilizer, snow removal, always a new excuse. Always in the yard. We can't even go outside and we can do these things ourselves. Is there anything that can be done? We don't feel private or safe. | Approach the neighbor in your yard and ask him to leave. You are the tenant, you have full rights to do so. Once he refuses to leave he is a trespasser and you can call the police to take care of him, let alone if he makes any threats. Regarding the landlord, just ignore them and take care of the yard and the house as the lease terms bind you. Require them to give 24 hour notice before any appearance as the lease terms bind them. | The person responsible for the leak pays This is a general principle that if your stuff causes harm, you are responsible for it as well of the costs of doing what’s necessary to stop it. This might or might not be you. Assuming the water is normal “splash” that is making its way into the unit below then it will be the person who is responsible for maintaining the waterproofing in your bathroom - that might be you or it might be the common property owner, you would need to check your by-laws. Of course, this assumes your building is new enough to have waterproofing - older buildings just relied on the tiling. If so, this is almost certainly your responsibility. If instead, it’s a leak from a pipe or fixture, then the owner of that is responsible. That could be you or the building owner or even your downstairs neighbour. Again, check your by-laws. Edit The OP has indicated they are a tenant, not the owner. In this case, it’s nothing to do with you unless your lease says you are responsible for building maintenance or you have been negligent. Residential leases almost never do the former and, unless you did something stupid, like allowing the bath to overflow or having water balloon fights, you probably haven’t been negligent. Refer the matter to your landlord and ask your neighbour to direct all future correspondence to them. | 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. | If a trespasser openly and notoriously, exclusively and continuously possesses your property by building a fence on your land for the right time period, they automatically own the land. It still takes a court proceeding to record the passing of title (the trespasser has to prove in court that it is legally theirs). The trespasser would also have to establish that the recent survey was correct (survey errors do exist): was there an earlier survey in connection with the fence that established different boundaries? If (as it turns out) this has become his property, he abstractly has title to it, but only you and he know about it. The trespasser may have an interest in officially changing the property description, because it will officially increase the size of his lot and thus the value of the house+land. This also will increase their tax burden (while decreasing yours). The county has no knowledge of the fence: they go off of the official record, which says that you own that wedge. You also may have an interest in changing the property description, primarily to reduce your tax bite. There could also be issues with your resale of the property, since a mortgage company may require a survey of the property. Whether or not that is bad is hard to say: the consequence could be that the buyer is alerted to the fact that the lot is smaller than advertised and so on; in the current market I doubt anyone would care. If the fence goes away and you start using the land, then it will officially revert to you after a while. If you catch the party and complain within 10 years, you may recover the property (RCW 7.28.010). The limitations statute says that The period prescribed for the commencement of actions shall be as follows: Within ten years: (1) For actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action. That ship has (apparently) long since sailed. There is a different law pertaining to "Adverse possession under title deducible of record" which shortens the limit to 7 years, which is even less useful to the original owner. RCW 7.28.070 also shortens the time limit for an adverse possession case, to 7 years: Every person in actual, open and notorious possession of lands..who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be ... the legal owner of said lands There is another (more recent) tax-related provision, RCW 7.28.083. (1) A party who prevails against the holder of record title at the time an action asserting title to real property by adverse possession was filed, or against a subsequent purchaser from such holder, may be required to: (a) Reimburse such holder or purchaser for part or all of any taxes or assessments levied on the real property during the period the prevailing party was in possession of the real property in question and which are proven by competent evidence to have been paid by such holder or purchaser; This does not require them to have paid taxes, it say that the victor in the dispute may nevertheless be ordered to reimburse taxes paid by the other party (assuming the other party has paid the tax). So there is some chance of getting the taxes back. The reimbursement is at the court's discretion (continuing that section): (2) If the court orders reimbursement for taxes or assessments paid or payment of taxes or assessments due under subsection (1) of this section, the court shall determine how to allocate taxes or assessments between the property acquired by adverse possession and the property retained by the title holder. In making its determination, the court shall consider all the facts and shall order such reimbursement or payment as appears equitable and just. One should also pay attention to the last provision in that statute: (3) The prevailing party in an action asserting title to real property by adverse possession may request the court to award costs and reasonable attorneys' fees. The court may award all or a portion of costs and reasonable attorneys' fees to the prevailing party if, after considering all the facts, the court determines such an award is equitable and just. That means that the victor can request the loser to pay his attorney's fees. This is delicate math, balancing the chance of recovering some paid taxes vs. paying the other guy's costs. You could try calling the assessor to find out how much the decrease in lot size might net you (the land vs. improvement proportion of taxes is all over the map in KC, easily ranging from 60% to 250% depending on year). One additional feature of adverse possession is that it must be "hostile", i.e. without permission. If a neighbor builds on your land, you can explicitly give them revocable permission (to avoid "no you didn't" arguments, explicit and revocable written permission, signed by the neighbor, would bar an adverse possession claim). This raises an interesting question, to which I don't know the answer. Suppose the prior owner gave permission to the fence builder, and did not demand the removal of the fence when he sold the property or right after the neighbor sold his property (there was only on act of granting permission). Does the clock start from your acquisition of the property (whereupon the element of hostility is satisfied)? Or does it start from the point where they acquired the property and were in hostile possession of the land (I would bet a quarter that that's the answer). If (or, given that) the fence was moved further onto your property more recently, there is a chance to recover the newly-taken piece of land. If you grant them revocable permission to build a fence on your property, you would not be subject to an adverse possession taking for the newly-taken land. If at some point you tell them to tear down the fence and they refuse, you can sue them and the court will (almost certainly) order the removal of the fence. The neighbor might then initiate an action to quiet title on the originally-taken piece of land, so you'd be back to where you were 4 years ago. From a practical perspective, this is well-worth the small amount of money involved to consult with an attorney to get legal advice. The legal matter probably will not go away quickly, and they may be presently inclined to settle in a manner more in your favor. | Maybe, Hence the Lawsuits In the absence of clear statute law these all circle around tort law. For the scooter companies, trespass to chattels, and for the affected landowners (who hire the removalists) trespass to land and nuisance seem applicable. In essence, I can’t take your stuff (trespass to chattels) but you can’t leave your stuff on my property (trespass to land) or impeding access to it (nuisance). If you do, I am entitled to the reasonable costs of dealing with it. Note that, as owner, you remain responsible for you stuff even if you rented it to someone else. Both sides are pushing hard into unexplored areas of law so we await the judgement with interest. Then we’ll know. | It's not THAT easy, and it's fifteen years, not ten. As you say, Virginia requires your neighbors to do more than mow your lawn to get title to your land. In Virginia, most of these requirements are laid out in judicial decisions, not statutes. However, the one requirement set by statute is that the possessor has to have "possessed" the land for 15 years. As for the rest of the requirements, they are the usual ones. Ten years ago, the Supreme Court of Virginia gave a nice, concise summary. It said that to "establish title...by adverse possession," your neighbor would have to prove that their possession was: actual, hostile, exclusive, visible, and continuous... Here is what the Court said each element requires: Use and occupation of property...constitutes proof of actual possession. One is in hostile possession if his possession is under a claim of right and adverse to the right of the true owner. One's possession is exclusive when it is not in common with others. Possession is visible when it is so obvious that the true owner may be presumed to know about it. Possession is continuous only if it exists without interruption for the statutory period. Two things to notice: Because your neighbor's possession must be adverse, you can stop the 15 year possession "clock" by simply giving them your permission to mow the lawn. It does not matter that your neighbors are mowing "in secret and without letting us know it." That you are here asking about it shows the mowing so "visible" that you know what is going on. For more information Whether your neighbors can claim your land depends on how Virginia courts have interpreted the law. Luckily for you, several Virginia lawyers have gone online to explain those details. These two, (one in the Washington Post), give nice overviews, while this guy, says mowing alone probably won't do it. This guy says, "Virginia courts don’t make adverse possession easy," but he's a NYer, through and through, so who knows whether he knows what he's talking about? Of course, none of this is a substitute for talking to a Virginia lawyer with experience in adverse possession. | She has no legal right to your stuff, and every legal right to the apartment. The only way adjudicate such a conflict of rights is with a restraining order. A temporary order would expire in 3 weeks. Item 14 in the petition requests exclusive use, possession, and control of the property. However, that path of restraints is tailored to domestic violence, so item 27 has you describe the alleged abuse: Abuse means to intentionally or recklessly cause or attempt to cause bodily injury to you; or to place you or another person in reasonable fear of imminent serious bodily injury; or to harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, keep you under surveillance, impersonate (on the Internet, electronically or otherwise), batter, telephone, or contact you; or to disturb your peace; or to destroy your personal property. Note that the description refers to destroying your personal property, not pawing through it. It's really impossible to know if the judge will exercise his discretion to include "reasonable fear of destruction (or theft) of personal property", since the ex-roommate has no further interest in the apartment. There is an alternative path of a harassment restraining order, which does not require a defined domestic relationship (such as ex-roommate), where "harassment" is violence or threats of violence against you, or a course of conduct that seriously alarmed, annoyed, or harassed you and caused you substantial emotional distress. A course of conduct is more than one act and that seems even less likely. | If your friend thinks he can live there for free due to his unique interpretation of contract law, he is mistaken. He'll get evicted if he doesn't pay rent, and likely end up with a judgement against him for unpaid rent. At its core, a rental agreement ensures that in exchange for paying rent, he may occupy the property. You can argue up and down about payment methods, but the fact remains he must pay rent in order to live there. Your friend MAY have an argument that he could move out and not be subject to penalty for breaking the lease because the payment terms changed. He'd have to give notice and would still owe for the time he occupied the property. There's just no way he can live there for free. He may find this out the hard way. |
Would loading a firework into a gun make it a Destructive Device? I've got a question inspired by a dream I had last night. If someone were to load a firework into a firearm, would that result in the firearm being classified as a Destructive Device? For instance, lets say you took a standard, breach-loading 12 gauge shotgun (barrel diameter just over 18 mm), and you inserted into it an 18mm fireworks rocket, followed by a blank shotgun shell to ignite the rocket's propellant. Would that cause the shotgun and/or firework to become classified as a Destructive Device under the National Firearms Act? If it does, what actions would the owner of the weapon need to do to avoid breaking federal law? | This ATF page quotes from 26 USCA §5845(f)(2) as follows: (f) Destructive device.--The term “destructive device” means * * * (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary or his delegate finds is generally recognized as particularly suitable for sporting purposes; . . .” The hypothetical device you describe has a bore of > ½", and when fired would cause a projectile (the rocket) to exit the barrel. The rocket's firing is clearly caused by firing the blank shotgun shell, and would, I think, be seen as "expelling" the projectile. The objection that "the rocket fired and expelled itself" would not be persuasive. Thus, I think the device you describe meets the statutory definition of "destructive device." To avoid breaking this law, do not either a) insert a projectile (here, the rocket) in the shotgun bore, or b) set up any external mount or mechanism to ignite the rocket as a result of igniting a shotgun shell (blank or not blank) in the shotgun barrel. | The simple answer to the question you asked is that they are not mutually exclusive. Self-defense and “castle doctrine” are defenses. A person can be charged and tried for murder, and one or both of those can be their defense. But shooting someone in self defense does not guarantee immunity from a charge or trial. In the first place, you need to show that it was indeed justifiable self-defense. As a source for this answer, see Texas state law library. https://guides.sll.texas.gov/gun-laws/stand-your-ground That site itself says that the laws are complicated and refers readers to “plain English” from which I selected https://www.bhwlawfirm.com/deadly-force-self-defense-in-texas/ For self defense, the site says: Texas law provides for a justifiable defense at trial when using deadly force if the person claiming self defense: Reasonably believed the deadly force was immediately necessary; Had a legal right to be on the property; Did not provoke the person against whom deadly force was used; and Was not engaged in criminal activity at the time the deadly force was used. For protection of property, it says Under Texas Penal Code §9.42, a person may use deadly force against another to protect land or property if: He is the owner of the land; He reasonably believes using the force is immediately necessary to prevent arson, burglary, or robbery; and He reasonably believes that the land or property cannot be protected or recovered by any other means. OK! To summarize the story linked by the OP, homeowner hears and then finds a man outside breaking into homeowner’s shed. He confronts intruder who then moves toward homeowner with a pickaxe. Homeowner shoots and intruder runs off. let us agree that the first shot was allowed under Texas law, preventing a robbery and perhaps an attack with a pickaxe. The homeowner says that he then shot again “into the night.” At this point he is shooting a fleeing person. We can even leave out all of the irregularities once he calls 911 two hours later to report an invasion in progress even though the intruder was dead. In any case, there is also the questions are: Is the homeowner’s version of events true in the first place? If we accept everything he said, was the shot the killed the man justifiable under Texas law? These are for the prosecutor to decide if it is worth trying and the jury to decide. Back to your question of how can they charge him if he had a right to stand his ground? Further, even if a person has a justification for using force, he may still be arrested and face trial. Self defense is a defense against a murder charge, not a get out of jail free card. | You aren't liable unless you do something stupid with them. Possessing keys doesn't make you the owner, it makes you someone with keys. That said, we could probably come up with negligent things you could do that would be a problem. Like have a huge heroin party (let's assume this is a thing) filled with minors in the back yard. The family of an overdosed kid would have a good action against you personally for being so negligent, and also probably against the homeowner and their insurance as the property owner. If the party turned wild and the house burned down, the owner would likely have good action against you as well. I doubt this is really a problem for you, so there's no need to worry. | Yes, and sometimes it even makes perfect sense that such an activity would be a crime. For many crimes, attempting the crime is a crime. The attempt may have no actual effect on any person or property, but is still illegal. According to 16 U.S. Code § 1538(a)(1)(C) it is illegal to kill an endangered species on the high seas. A whale in international waters cannot really be considered anyone's "property" (and since it's in international waters there can't even be some weird theory of it being the government's property) but it is still illegal. 18 U.S. Code § 700 purports to prohibit the desecration of a flag, although this was found unconstitutional. 18 U.S. Code § 708 makes it a crime to commercially use the coat of arms of the Swiss Confederation, for some reason. And 18 U.S. Code § 711a makes it a crime to use the slogan "Give a Hoot, Don’t Pollute" for profit, except as authorized. (But maybe that sort of thing counts as intellectual property.) 18 U.S. Code § 342 makes it a crime to operate a passenger train under the influence of alcohol or drugs. This really only affects people and property if the train is driven improperly as a result; if you make it safely, you'd probably never even know. But the driver would still be facing up to 15 years in prison if he was caught doing that. And finally, according to A Crime a Day on Twitter: 33 USC §1232(b), 33 CFR §401.101 & §401.94(a) make it a federal crime to violate the St. Lawrence Seaway regulations by not having a copy of the St. Lawrence Seaway regulations while you pass through the St. Lawrence Seaway. | After some more research, I found several german retailers like Frankonia and Brownells, which do ship firearm magazines to Austria. My reasoning is as follows: If they were regulated in any way, they would either be confiscated or sent back to the store. In either way, the customers would get in contact with the store, and the store would stop shipping magazines to Austria. Since I was unable to find a german store which specifically mentioned that they would not ship to Austria, I am going to assume that they are not regulated and can be purchased freely. | You did not mention the country where you are, but this sounds like a very bad idea. Any working "glitter bomb" will be a low-grade bomb and setting one of those is extremely illegal. If you know when the next parcel will arrive, my advice would be to arrange for a credlible witness and to take pictures of the parcel before you open it any further. Then report the damage to the sender. If it was a commercial parcel, ask for a full refund. Enough of that and the postal inspectors will wonder why their machines are "damaging" so much mail. | Actually, neither the council nor a private owner are responsible for illegal actions by unauthorised people on their property. This is obvious: if an intruder enters your property and, while there, shoots someone you cannot be held responsible. However ... Since you have made them aware that there are intruders on their property acting illegally and causing a nuisance to the neighbours and they have done nothing they are quite likely negligent, even recklessly negligent. Rather than sue them, consult a lawyer and get them to write a letter that if they do not take action by X date you are going to sue them. | No It's your device, you can do what you like with it (subject to the law - you can't hit people with it. Unless they want to be hit: whatever turns you on, turns you on). However, if you do operate it outside their instructions then they would not be legally liable if it failed and injured you or someone else or set fire to the cat or whatever. The "prohibition" would limit their legal liability. |
Drinking water is contaminated; what can a tenant do? I'm renting an apartment in a rural part of California where I've lived for about three years, on a month-to-month rental agreement. The landlord is responsible for providing / paying for the water, according to the rental agreement. The water was tested and it turned out to be contaminated with E. coli. All the tenants were notified of this with a "Boil Water" notice on our front doors. After about five weeks, the water stopped entirely. As far as I can tell, the water here is provided via a "state small water system" owned by the landlord. Is there anything I can do as a tenant? | The relevant law regarding a landlord's obligation to provide a habitable premise is California Civil Code section 1941.1, which says a) A dwelling shall be deemed untenantable for purposes of Section 1941 if it substantially lacks any of the following affirmative standard characteristics or is a residential unit described in Section 17920.3 or 17920.10 of the Health and Safety Code:... (3) A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produces hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law. This does not say that water must be drinkable fresh from the tap (what has to be approved is the water system, not the water coming through the system). These legal professionals imply that a landlord is obligated to take care of the problem, but that could be advertising. Although there isn't a clear requirement to provide bacteria-free water, you might prevail in a lawsuit. However, it still isn't possible under §1941 to compel the landlord to fix the problem, according to the Cal. Consumer Affairs blurb. In case it turns out that the condition of the water does put the landlord in violation of the habitability standards, a standard remedy is to give written notice of the "dilapidation" of the premise which renders it untenantable and which the landlord should repair, and after a reasonable time the landlord neglects to repair the dilapidation, they you can fix it yourself and deduct the cost up to one month's rent. Or, you can terminate the lease (not much use with a month-to-month). This is under §1942. | Of course not. If the owner/tenant needed to be home I could rent a house in my name, and then never occupy it (my associates live there) the cops could never enter. Wilson v. Arkansas, 514 U.S. 927 (1995) - Cops executing a warrant need to knock. If no one answers they must wait a reasonable time for an occupant to let them in. It's the knock and announce rule. By implication it might lend authority to what is an obvious answer. | Your sewage provider is a “Public service company” under Maryland law: (x) (1) “Public service company” means a common carrier company, electric company, gas company, sewage disposal company, telegraph company, telephone company, water company, or any combination of public service companies. (ee) “Sewage disposal company” means a privately owned public service company that owns or maintains facilities for the disposal of sewage. The Public Services Commission sets the rates: The Commission shall have the power to set a just and reasonable rate of a public service company, as a maximum rate, minimum rate, or both. The utilities code paraphrases this in other provisions: In accordance with the provisions of this article, a public service company shall charge just and reasonable rates for the regulated services that it renders. There is no legal process involved in your situation, since it is a political matter what constitutes a just and reasonable rate. You can write letters of protest, but the commission has the power to set the rates. You can, however, investigate whether the charges were actually approved. You do, however, have to contact the utility before filing a complaint with the commission. The landlord has zero control over rates set by the government, so they cannot reasonably be expected to contractually commit to any particular rates. However, if they overtly lied to you about the terms of the lease, you might sue to get out of the lease, but the chances that you would prevail in such a suit are negligible. | Let's analyse the landlord's claims: You have an assured shorthold tenancy agreement. The fact that there isn't a written contract doesn't change this as a verbal agreement is legally binding. That's true. A tenancy exists even if this was never written down, and it's an AST by default if the requirements for being one are met. Payment of rent constitutes acceptance of these terms. Payment of rent by the tenant, and its acceptance by the landlord, is sufficient for a tenancy to be regarded as existing. The tenancy can only be terminated early from the permission of the landlord. That's rubbish. A tenant can always end a tenancy, but there may be restrictions. In particular, a tenant cannot end a tenancy before the end of a fixed term without the agreement of the landlord, but the landlord has an obligation to find new tenants if this happens. However, I've been unable to find any information as to whether a fixed term exists if there's no written agreement. Assuming there is no fixed term, then for a month-to-month tenancy, the tenant must provide one month's notice to end the tenancy, with that month ending at the end of a rental period (i.e. the day before the next payment would be due). If you leave early this is legally abandonment and you are still responsible for paying rent for the duration of the tenancy That's true. ... if you do leave next month I'll consider you in rent arrears and pursue payment through legal means That is possible - but if you give notice as described above, then the tenancy will end, and (assuming you're up to date with the rent) you'll no longer be liable. | The thing I was trying to zero in on was the work/refresh/renovation that needs to be done between tenants, and if they landlord can expect to do it while Tenant A is still paying (up to the date of the 'lease change'), but expecting that Tenant A has vacated before that date, or allows the work to be done while they are still occupying? The first tenant is not required to relinquish possession of the premises while the first lease is in force. The landlord's right of access to the apartment remains unchanged from those specified in the lease and in state landlord-tenant law. So basically the landlord has to wait until the first tenant leaves before doing most of the work. If the first tenant relinquishes possession of the premises before the end of the lease period, the landlord can keep charging rent until the premises has been re-let to a new tenant. But if the landlord has agreed to stop charging rent when the first tenant moves out, the landlord may be bound by that agreement. If the landlord has signed a second lease with a new tenant beginning immediately after the first tenant's mutually agreed early move-out date, then the landlord basically has no time available to fix up the apartment except with the consent of one tenant or the other. | What does "PROVIDED FURTHER" here mean? The term keeps two provisions separate, and hence independent of each other (unconditional). The former provision addresses landlord's initiative [to terminate the lease] whereas the latter addresses tenant's initiative. The latter pertains to early termination of lease and is not to be confused with tenant's default/non-payment. If rent is to be paid on the 1st of each month and the landlord wants the tenant to move out by August 13, the landlord needs to give a written notice at least thirty days prior to August 1 because the 1st of August is "the next rent payment date". This is regardless of tenant's timely payment of rent. Tenant's initiative to prematurely terminate the lease forfeits his security deposit regardless of having hitherto/always paid rent on time. | Can a landlord keep a security deposit if my apartment rental application is approved, but I back out of signing the lease? That can't be legal, right? No. That is a violation of California CIV 1950.5. Although 1950.5(b) reflects that one of the permissible purposes of a security deposit is "to reimburse the landlord for costs associated with processing a new tenant", item (e) limits that amount "as [is] reasonably necessary for the purposes specified in subdivision(b)". A deposit of 1.5 times the monthly rent clearly is excessive for "processing a new tenant", let alone processing an applicant who never became a tenant because no lease agreement was entered. All other permissible uses of security deposit are inapplicable in your matter. Furthermore, if the landlord required a separate payment for the application, then your application fee satisfies the provision in 1950.5(b). This means that the landlord has the obligation to reimburse you 100% of the security deposit. | Certified applicator here. Needless to say, every exception has a reason, and was lobbied for by applicators, manufacturers, or common sense. Let's run through them. (1) applying a pesticide at any dosage, concentration, or frequency less than that specified on the labeling unless the labeling specifically prohibits deviation from the specified dosage, concentration, or frequency, This is mainly about rinsate. When you're done spraying, you have a bunch of flushing out to do. The empty jugs or barrels need to be triple rinsed with agitation (fill-shake-dump 3x). The dregs of the premix tank have to go, and the tank rinsed out with clean water. The spray equipment needs to be purged (not least so the acidic or basic pesticide doesn't corrode it). This yields a lot of "contaminated" water which is simply water + the pesticide at a lower-than-normal concentration. This is called rinsate. You also sometimes end up with "leftover mix" or "mistake mix"; like 200 gallons of pre-mixed {Roundup? 2,4-D?) that a non-certified predecessor left behind. I don't know what that is, so I'll dilute it enough that it's definitely below maximums. So you have all this chemical that is highly diluted, of ??? dilution but well below maxima. Can't dump it on the ground. Can't dump it down the drain. My friend says "How do you dispose of old paint? Paint something you don't want, then throw it away." And that's exactly what you do: identify locations that are legal to spray the stuff, and spray it there. It's much weaker, of course. This exception (1) is specifically to allow for this case. Of course you know you need to run a full antibiotic treatment, or you'll just breed antibiotic-resistant bacteria. Some cases are like that, and the product labeling will tell you "don't under-use". That's what the "unless" is for. Presumably in that case they'll tell you what to do with the rinsate. (2) applying a pesticide against any target pest not specified on the labeling if the application is to the crop, animal, or site specified on the labeling, unless the Administrator has required that the labeling specifically state that the pesticide may be used only for the pests specified on the labeling after the Administrator has determined that the use of the pesticide against other pests would cause an unreasonable adverse effect on the environment, The first part of this is for accidental or collateral damage: think about how civilians figure into the rules of war. You can't go "12 civilians, shoot them", but you can go "11 soldiers, 1 civilian, shoot them". Suppose you're spraying 2,4-D on your yard, at a 1.5 lb/acre rate (max 3.0) to suppress broadleaf (dandelions). "Lawns" are a crop specified on the labeling. Controlling broadleaf there is a labeled use, and therefore legal. Your yard also has butterflies. This is where the exception (2) comes into play. Since "the application is to the crop, animal, or site specified on the labeling" (2,4-D on lawns to control broadleaf), then, when the local butterfly admirer accuses you of applying a pesticide against any target pest not specified on the labeling (2,4-D is definitely not labeled for butterflies), you have a defense. The butterfly is the civilian you can't aim at, but it is not a war crime if you shoot at a soldier and hit a civilian by mistake. If the collateral damage becomes serious, e.g. there are big issues with pollinators (e.g. honeybees) being injured by pesticide use in factory farming, then the "Unless" clause allows the EPA to intervene and cancel exception (2) on a case-by-case basis. A consumer product might be pulled, or a commercial product will mention this in the (lengthy, fold-out) labeling. (3) employing any method of application not prohibited by the labeling unless the labeling specifically states that the product may be applied only by the methods specified on the labeling, That is to give you the versatility to apply as needed. Imagine you are a farmer. Most farm pesticides are sprayed from a land vehicle, and you use the highest concentration that is workable because water is heavy. But suppose you're far enough west that your cornfield is a circle and you use a rotary irrigator. You might mix the pesticide in with the irrigation water (at a dramatically lower concentration). This exception relieves the manufacturer of the obligation to cover every possible application method. But the factory is able to override this. (4) mixing a pesticide or pesticides with a fertilizer when such mixture is not prohibited by the labeling, Simply a labor-saver: to allow you to apply pesticide and fertilizer in one pass, which most gardeners appreciate. It also empowers products like weed-and-feed. (5) any use of a pesticide in conformance with section 136c, 136p, or 136v of this title, or (6) any use of a pesticide in a manner that the Administrator determines to be consistent with the purposes of this subchapter. These are statutory phrasing to enable other legislation or rulemaking. After March 31, 1979, the term shall not include the use of a pesticide for agricultural or forestry purposes at a dilution less than label dosage unless before or after that date the Administrator issues a regulation or advisory opinion consistent with the study provided for in section 27(b) of the Federal Pesticide Act of 1978, which regulation or advisory opinion specifically requires the use of definite amounts of dilution. This locks in the "right to over-dilute" (exception 1) for ag and forestry applications. |
GDPR: Is only a birthday personal identifiable information? I wonder if only a birthday is seen as personal identifiable information according to the GDPR, so no usernames, passwords, emails, phone numbers are present in the system. Literally only a birthdate. And if someone can answer this it would be great if you could link the source as well since I can't seem to find this. | This depends on the context – GDPR rarely restricts the use of specific kinds of data (see Art 9) but instead regulates the processing of this data, and the purposes for which it is processed. Personal data is any information relating to an identifiable person (Art 4(1)). So to show that some information is not personal data, you must show either that it doesn't relate to the identifiable person, or that it's not possible to identify the person. Whether a person is identifiable depends on the means of identification that are reasonably likely to be used, taking into account the cost and effort of these means (Recital 26). This recital also mentions that singling out a person is a kind of identification. If you have lots of birthdays so that there are no unique birthdays, or if the birthdays are stored without contextual information that would allow identification, this can indicate that it's not personal data. Some examples to illustrate my views: Scenario 1: you are collecting statistical data in a shopping mall and are collecting birthdays from passer-bys, without any additional information. This information is anonymous and not personal data, since you have no reasonable means to identify the persons. Scenario 2: in an office, there's a publicly visible calendar on the wall with the birthdays of all staff members. However, the calendar doesn't say whose birthday it is. This information is likely personal data, since it's reasonably possible to infer the correct person based on contextual information. At least HR would also have the birthday for all staff members on file, so that the company clearly has the means to identify anyone. (This doesn't mean such a public calendar is illegal, just that there must be a legal basis.) It is more difficult to determine whether information also relates to an identifiable person, i.e. whether this information is about that person. This depends not just on what the information is, but how the information is used. AFAIK there has yet to be EU-wide guidance by the EDBP, but the ICO has listed some hints. I think that a birthday of an identifiable person will almost always relate to that person. | You quoted the definition of personal data from Art 4(1) GDPR. This definition of identifiability is further explained in Recital 26: […] To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. […] If the user ID is unique, then the hashed user ID will be unique as well. Thus, the hashed ID will enable “singling out”, and would still count as identifying in the sense of the GDPR. You also claim that there's no way to reverse the hash. This is not quite correct. Assuming that the hash function itself is secure, then the only way to crack the hash is to brute-force the input. The difficulty of brute-forcing depends only on the entropy of the input data, not on the size of the output hash. It is thus comparatively easy to crack hashes of short low-entropy strings like sequential integer user IDs, IPv4 addresses, or weak passwords. In contrast, it would be difficult to crack long random user IDs, such as UUID version 4 identifiers created from a cryptographically secure RNG (CSPRNG). Even if the hashes can't be cracked, they are not anonymous – you can link them to the original user ID, after all. The GDPR only considers data anonymized if there are no “reasonably likely” means to re-identify the data subject. If this de-identification is reversible, it's called pseudonymization instead. If storage allows, a better technique to generate pseudonymous IDs is to create a table that maps the true ID to a CSPRNG-random ID. Unlike a hash, the random ID cannot leak extra information about the original ID. This pseudonymization technique could perhaps also be turned into irreversible anonymization by deleting the ID mapping, assuming that no “singling out” can happen. Pseudonymization is a very good security measure. It is explicitly mandated whenever appropriate in Art 32 GDPR. So you should probably use it. It's just that GDPR continues to fully apply to processing of the pseudonymized data. Since the pseudonymized data is the data subject's personal data, you may be required to delete it when receiving an Art 17 request for erasure. You may also be required to forward the request to others with whom you shared the data. However, the right to erasure has many conditions and exceptions. If you actually need to keep the data for a particular purpose, chances are good that you can keep it. | The GDPR doesn't generally distinguish public from non-public personal data. If you have a good reason to contact the professor, do send them an email. GDPR does not prevent this. If you're sending this email for “purely personal or household purposes”, then GDPR doesn't apply anyway. There are rules in the ePrivacy Directive against unsolicited emails, but these specifically relate to emails for direct marketing purposes. A company is not allowed to send out spam marketing, regardless of whether they obtained the email address from a public data source. Companies can send email marketing to their own existing customers, or to people who have given consent. Consent is defined in a fairly restrictive way (as a specific, informed, freely given, and unambiguous indication of the data subject's wishes), so that mere publication of an email address cannot be interpreted as consent to receive marketing from a particular company. | It’s personal data ... but why do you think you can change it for free? It’s clearly personal data because it can be demonstrably linked to you, both within and outside Blizzard’s database. Presumably, you consented Blizzard having it or they have some other legitimate basis for having it. So far, this is all GDPR compliant. You have a right to be forgotten, so you can ask Blizzard to delete your account. You have a right to confirm the information is correct. And that’s it. They can charge you a fee to change your user name just like your government can charge you a fee to change your real name. | "1) Can I use an pre checked tick box under GDPR?" Nope. "Silence, pre-ticked boxes or inactivity should not therefore constitute consent." (Recital 32) "2) Since GDPR also requires the data collector to ensure that the user is not under the age of 13 so I am planning to ask the users age only for that region i.e. EU Region. Now will simply mentioning that "By continuing you acknowledge that you are above 13 years" will work or will I have to ask the users age?" You have to require some affirmative action. Implicit consent (just continuing) is not acceptable (ibid.) "3) The GDPR requires the data collector to have a proof of the users consent. Now what kind of proof will be required for my App? I am ensuring that the user cannot move forward without providing the consent (only once) is that sufficient as a proof or is any other proof required?" If you are collecting data about the user, you should record the time and date consent was given as part of the user profile. If you are not collecting data about the user (this is only done by third party services such as Google analytics etc.) and there are no user profile, then preventing the user from using the app will have to do. The GDPR also requires data-minimization, and creating a user profile to record consent when no user profile is otherwise required will violate data-minimization-principles. | There’s no definitive list of what is or isn’t personal data, so it all comes down to properly interpreting the GDPR’s definition: ‘[P]ersonal data’ means any information relating to an identified or identifiable natural person (‘data subject’). — Article 4(1) In other words, any information that is clearly about a particular person. But just how broadly does this apply? The GDPR clarifies: [A]n identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. — Article 4(1) This means that because you say that coordinates and anticheat logs are linked to the cheaters ingame username and unique id, if there is a record of who that username and/or unique id belongs to, even if it is just an IP or email address, it is considered personal data because the information relates to an identifiable natural person. Personal data includes any data which can be linked to information where a person can be identified From CommentsIf the online username and unique id is not linked to the actual human (no stored real name, no home address, no IP), can the natural person actually be identified? The records and anticheat logs are linked to the unique id and username, however the unique id and username are (from my POV) not actually linked to the real human Only you can answer that question as it stands because we have no access to your data. From what you have told us, even though the coordinates and anticheat logs are linked to the cheaters ingame username and unique id, that alone doesn’t fall under the GDPR’s scope of personal data, as, in all likelihood, the usename and unique id could relate to anyone in the world. The issue comes if elsewhere you have a record of the person's name, IP, date of birth etc. which when combined with the anticheat logs could link that data to identifiable people. You might think that someone’s name is always personal data, but it’s not that simple, as the UK’s Information Commissioner’s Office document what is personal data (PDF) explains: “By itself the name John Smith may not always be personal data because there are many individuals with that name. However, where the name is combined with other information (such as an address, a place of work, or a telephone number) this will usually be sufficient to clearly identify one individual.” Note: A name which is much less common could be personal data as the likelihood of it relating to others deminishes. John Smith is a common name all over the UK, but what about a particular polish/czech/hungarian/french.... name (let's say) living in Nottingham, UK? What is the likelihood of another person of the same name in Nottingham, UK? Add a middle name or double barrelled surname, and it becomes even more likely that it is personal data. If you’re unsure whether the information you store is personal data or not, it’s best to err on the side of caution. This means making sure data is secure, reducing the amount of data you store, collecting only as much data as necessary to complete your processing activities, keeping data for only as long as it meets its purpose, and ensuring only authorised people are able to access the data. | 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. | 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. |
Should I assume a deceased person's work is public domain if I can find no evidence of an estate? If I can find no evidence that a writer or artist left an estate, and their work was published over 100 years ago, is it safe to assume it is public domain and therefor, free to use? Specifically I'm trying to find out if a poem by Wilfred Owen, an Englishman who died 1918 in France, is available to use in a book intended for public sale in America. The poem was published in 1918. So far I can't find any evidence that his family or an estate holds the copyright to his works. His wikipedia article mentioned: In 1975 Mrs. Harold Owen, Wilfred's sister-in-law, donated all of the manuscripts, photographs and letters which her late husband had owned to the University of Oxford's English Faculty Library. If the poem was a part of those manuscripts, does it now belong to Oxford even though it was already published? | Copyright still exists even if you don't know who owns it In this particular case, however, the copyright has expired - UK copyright lasts for 70 years after the last author passes away. For a death in 1918, copyright expired on 31 December 1998. For other cases where the author was still alive in 1940 (for this year - 2020) but has since passed, the copyright belongs to their heirs and assignees. It's possible that you don't know who that is. It's even possible that they don't know that they own it. Doesn't matter, it's still copyright protected and those people (whoever they are) can enforce their rights if they want to. When you think that everything everyone ever writes, records, photographs, paints, draws etc. will have copyright for 70 years after their death and that most of that stuff has little to no value, is usually not explicitly dealt with in a will, and their heirs will generally not think to deal with it or pass it on in their will it's no wonder the world is full of orphan works. Some copyright legislation deals with this; the UK's does. You can pay the government for a 7-year licence for orphan works. If the right's holder ever comes forward, they get the fees collected. | It Depends If the person reusing the image (lets call that person R for reuser) is not complying with the terms of the Creative commons license, which include a requirement to provide attribution of the source work, then R cannot rely on the license, and the granting of the license ad the presence of a license declaration is legally irrelevant. R must have some other basis to reuse the image. This could be an exception to copyright, such as fair use or fair dealing. Or possibly the image is not protected by copyright, for example because its copyright has expired, or because it is a work of the US Federal Government being used in the US. In the absence of such a basis, R is infringing copyright. In much of the world copyright now lasts for 70 years after the death of the author (or of all co-authors). In some different terms apply, ranging from life+50 to life+100. Sound recordings and photos get shorter terms in some countries. In the US the term is life+70 for recent works, but for work created and published before 1978 more complex rules apply, depending on the date of publication, and whether laws on notice and renewal were complied with. See the well-known chart Copyright Term and the Public Domain for the various cases and when copyright expires in each case. The question asks about fair use. This is a US-specific legal concept. It is designed to be flexible, an is highly fact-dependent. As a result it is rarely possible to say if a use will qualify as a fair use with certainty until a court passes on it. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more on fair use. Not providing attribution is itself often considered to weigh against fair use. The question does not give enough detail to make even a good guess as to whether such a use is likely to be held to be fair use. Identifying the kind of eagle has some educational value, which might favor fair use to some extent, but must be considered in light of the overall purpose of the use, which is not described. There is no indication as to whether the original work is creative or factual, or whether the reuse would be likely to harm the market for the original. Much use of images on social media does not stand up under a fair use analysis. Providing proper attribution might well help any fair use claim. See also Do you have to give attribution if an image falls under Creative Commons? | 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. | The duration of copyright is specified in the Copyright Designs and Patents Act 1988: 12 (2) Copyright expires at the end of the period of 70 years from the end of the calendar year in which the author dies The only provision for extending the copyright is where is some doubt about authorship. If an unknown author is identified within that 70-year period, then the copyright expires seventy years after the death of the last-surviving author (ibid.) In the case of an artistic work which is presumably verified as being the work of the artist and protected as such, it would be very difficult to suddenly "discover" an unknown contributor who would cause the copyright to be extended. | As Polygnome points out in the comments, the first step is to determine who owns the original copyright on your mother's work now. This will be her heirs. If you are the sole heir then no problem. If the copyright was explicitly left to you in her will, also no problem. If there are multiple heirs and no explicit assignment of the copyright, then problem. The copyright will probably be considered part of the chattels of the estate (i.e. everything except real estate). If those are allocated fractionally (e.g. half each to two siblings) then the copyright probably followed that principle, unless you have already come to some agreement about it. If you are on good terms with the siblings then the best bet is to just make a deal for their part of the copyright. You could just ask them to sign it over to you, or you could cut them in for a percentage of future royalties. That makes the situation 100% clear, and any publisher is going to require 100% clarity before they consider offering a contract. Once you have the whole copyright you can go ahead and register. I've looked through the registration process and it doesn't actually ask about derivative works. What it wants to know is whether you own the copyright, and who were the authors (including works for hire). So just fill it in on that basis. | Content posted to the web is usually openly accessible to all (unless protected by a password, paywall, or similar restriction). But that does not mean it is freely copyable by all. Such content is protected by copyright in just the same way as if it had been published in a book of essays by various contributors. Unless the copyright holders (who are likely to be the original authors, but might not be) give permission, or an exception to copyright applies, copying such content would be clear and obvious copyright infringement, and any copyright holder could sue for damages. Permission could be given by publishing the content under a permissive license, such as a CC-BY-SA license, or any of many other available permissive licenses. Or a would-be reuser could find the copyright holders and ask for permission. If the holder cannot be found or identified, or does not respond, then no permission has been granted. In the US the main exception to copyright is fair use. See this answer and other threads with the fair-use tag here for more on fair use. Since the question seems to contemplate using the whole of the posted content, since it might well damage any potential market for that content, and since the use does not seem to be "transformative", nor used for criticism or comment, a finding of fair use for this situation seems unlikely. But Fair use findings are very much fact-driven, and the exact facts do matter. Thus I cannot be at all sure whether a court would find this toi be fair use or not. In other countries there are a variety of exceptions to copyright, and I have not come close to reviewing them all. But none of the ones I know of seem to apply to the situation described in the question. Many are narrower than the US concept of fair use. I fear that without permission, copying this content would be infringement. However, it would not be infringement to create a site that includes a link to the existing content, and a summary or description of that content, along with new content, including comments on the old, with brief quotes to indicate what is being commented on. | The text in the image means, For works published after 1989, a copyright notice is not required for a work to enjoy copyright protection. If you use an unmarked work in a way that violates copyright, you cannot defend your use by claiming that the unmarked work is not under copyright. In most nations, all creative works are automatically under copyright per the Berne Convention. Prior to widespread adoption of the Berne Convention, authors needed to explicitly write a copyright notice on each work to make it covered under copyright. A notable example of such a failure to mark a work is Night of the Living Dead published in 1968, which did not include correct copyright markings and became part of the public domain immediately. Such an event can no longer happen under modern copyright laws, since copyright now applies by default, not because of a marking. The only effect copyright markings have in modern use is on innocent infringement. If you infringe a modern work the doesn't have copyright markings, you still infringe copyright, but you may be able to reduce the penalty by claiming that you didn't know copyright applied to the work. If the author includes a copyright notice, then you cannot claim ignorance of copyright. | No Copyright protects expressions of ideas but not ideas. A song with the words if a poem set to music would generally require the permission of the owner of the copyrighted poem. An instrumental score “inspired by a poem” would not remotely be using the same expression, or a derivative of, the poem. Titles are not subject to copyright and there are many books with identical titles. Try “The Gathering Storm” as a book title. |
Can a victim of crime sue a city that abolished their police department? Say that a city abolishes their police department based on accusations of systematic racism within their police ranks. The following day a person living in that city calls 911 to report that their home is being burglarized but no police show up at their home until several hours later. Can this person sue the city for not providing in a timely manner the services needed to protect themselves and/or their property? | No. The government generally has no duty to protect private citizens from each other. It was different facts but basically the same question in DeShaney v. Winnebago Cty. DSS, 489 U.S. 189 (1989), where the Supreme Court held: A State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security; while it forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its language cannot fairly be read to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. | 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. | The fault lies with the people who vandalized your house. In general, whoever causes you damage is responsible (liable) for that damage. This is true whether or not you are selling your house, having guests over, letting a friend stay over for a night or a week, or whatever the circumstance is. Insurance is there to cover many such losses: if a friend trashes your house in a drunken rage, your insurance will cover the damage, but they will invoke the doctrine of subrogation whereby they get to go after the friend, and you have to cooperate. In a situation where nobody has a clue who did the damage, the only possible way that the agent has any responsibility is if they were negligent in their duty to take care of the house. For your specific case, you'd need to discuss the forensic facts with your attorney. But generally speaking, the issue would be whether the agent had breached his/her professional duty of care, which is best understood as comparing his actions (or lack) compares to actions of other professionals in the same circumstance. If a house has 3 or 4 sets of visitors simultaneously, it is really not possible for an agent to supervise all of them at once. So the question would be, was this the result of one concentrated vandalism attack, or serial vandalism. The former is more in the realm of "stuff happens", and the latter is indicative of an endemic lack of care. To repeat, the fault lies with the miscreants who vandalized your house. You, or your insurance company, may nevertheless have to bear the financial burden. Your insurance company will certainly have an interest in spreading responsibility to the realty firm, if warranted by the facts. | There is no requirement to interview the victim and/or the suspect prior to filing charges. Often statements are taken from the parties involved/witnesses by police and presented to the District Attorney's office as evidence. However charges can be filed without either party being interviewed, especially by the DA. This can often be the case in things like domestic violence cases, where the victim refuses to cooperate and the perpetrator refuses to talk ("lawyer up" or invoke 5th amendment rights). Charges can be filed based on circumstantial evidence of the crime (in the example, marks on the fist of the perpetrator and injuries to the victim, along with proximity). The police will try to interview the suspect and/or victim, but usually the prosecutor does not get involved at this point until charges are filed and the defendant has retained a lawyer (or declined one). | 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. | I suspect that you would not be convicted in the present case, because the jury would be sympathetic to the plight of the person being dragged out and unsympathetic to the behavior of the draggers. However, we should set aside the emotional elements of a jury trial and focus on legal principles. The basic question is whether a person has the right to use force to defend against an unlawful battery: "a person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another". This right to defense also extends to defense of others. But it has to appear to be to unlawful, which is to say, you have to reasonably believe that the force used against the victim is unlawful. If a couple of thugs try to drag a person away, then an observer probably has a reasonable belief that this is an unlawful battery. But if a couple of police officers are observed dragging a person away (arresting him), apparently acting officially, the force used (up to a point) is apparently lawful and would not constitute battery of the victim. For defensive force against police to be lawful, the forced used by the police must be excessive. The outcome then depends on what a reasonable person would conclude (this is where the jury or judge makes a rather subjective decision). If a reasonable person would conclude that the assailants are acting lawfully in arresting the person, then a higher bar must be clear to justifiably use force in defense of others. Wearing a jacket that says "Police" favors the "appears lawful" side (though if you happened to know for a fact that the person wearing the jacket is not a police officer, then the "police exception" would not be applicable). In the relevant case, the facts point to the appearance of a lawful arrest (even if were to turn out to be judged unlawful). In the case that this is an apparent arrest, it would have to be the case that a reasonable person would find the force used to be excessive. Generally speaking, force used by officers is held to be reasonable, except in some cases where it is not. See for example the matter of Eric Garner, where the officers involved were not indicted. On the third hand, in this case, it might matter what the actual legal status of the "officers" is (they are not Chicago police). | The law regarding proof of service allows service of summons by publication in case a defendant "is not a resident of the state, but has property therein and the court has jurisdiction of the subject of the action". Plaintiff must file an affidavit saying that he believes that you are not a resident, and he either mailed the summons to you or states that your residence is unknown. Knowing how to contact a person is not exactly the same as knowing their residence, so the statement in the affidavit might be true. There is a one year limit on your right to defend and reopen if not served personally. The statute of limitations tolls after the cause of action has accrued (which I suppose would be defective service of the summons, viz. perjury in the affadavit). For recovery of real property, the time would be ten years. The court rules allow that "At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued". (This is clearly a matter that your attorney needs to address). | Not necessarily. Your own statements and the statements of the officer would be legally sufficient to convict you. Also, your statement that you don't believe you are at fault is strongly at odds with a widely held interpretation of the traffic laws (not stated in the formal language of these statutes). The prevailing interpretation of the traffic laws is that you are always at fault if you rear end someone because you failed to maintain a safe distance, pretty much as a matter of strict liability and regardless of the circumstances, because a safe distance is almost by definition a distance that it is possible for you to come to a full stop from if the care in front of you suddenly comes to a stop for any reason. The only situation I can imagine where there wouldn't be liability for rear ending someone would be if you were at rest behind them at a stop light and they actively backed up into you. In practice, almost any judge and almost any jury, would convict you of failure to maintain a safe distance if you rear ended someone absent the most extraordinary of circumstances. I honestly don't know any lawyer or likely potential juror who wouldn't convict you under these circumstances with only the testimony of the police officer and your own testimony (which you would have to offer to have any shot at avoiding a conviction) to establish that you did indeed rear end someone. Police are allowed to lie to suspects of crimes, and often simply do not have an accurate understanding of how the legal system works. So, you are not entitled to rely on a statement made by a police officer. Of course, it is also certainly possible that his statement is consistent with local practice in your neighborhood traffic court. So, showing up to contest the charge might still make sense, and it wouldn't be uncommon to receive a plea bargain with fewer points against your license, just for showing up to court. |
Can I be liable for vandalism if I have posted a political sign on the property? I have posted a political sign on the front lawn of a house I am renting. The landlord has told me that if I don’t remove this sign, I will be liable for any vandalism occurring to the house, as he believes the sign might make the property a target. Will I be legally liable? What if I respond to his communication and accept it? | The only avenue for tenant liability would be if the tenant is responsible for the damage. The courts have not assigned responsibility for damage resulting from other people's disagreement with a political expression to the person expressing the viewpoint. You are generally free to peacefully express yourself, and as a renter this would be part of your right of "quiet enjoyment of the premise". If there is a lease condition that says "no political signs", then maybe that's a violation of the contract, but that might also be an illegal term in your state or city (under landlord-tenant laws). Since you have the right to express your opinion, the courts must respect that right and not deem that engaging in political expression negates your other rights. In general, if someone commits a crime, the law does not say "but you take the blame if you express your political opinion". | One path would be to get compliance, by demonstrating that it is legally required. The best evidence that he is legally required to wear a mask is this recent mandate from the Department of Public Health. However, I cannot find a corresponding executive order, which may be in a generic form empowering CDPH to issue orders. Any imposition of penalties for violation must be publicly announced and rest on legislative authority. The mandate is not generally enforced, except in a few cases regarding bars and restaurants. There are various persuasive avenues that you could pursue, such as asking CDPH to come talk to him (unlikely, but you could try), complaining to the property owner, appealing to local social media to apply pressure (possibly putting yourself at legal risk for defamation, if you make a false statement). There are two more involved legal actions to contemplate. One is to terminate the lease and move elsewhere. This would likely result in an action to collect the remainder of the rent, but the strategy would be to argue that the manager has interfered with your private enjoyment of the premise. A second, highly improbable, is to sue the manager and get an enforceable court order requiring him to wear a mask. Courts have a prejudice against ordering people to take actions when other options exist (terminating the lease, monetary compensation). It could be an interesting but expensive test case to see if you could get a judge to order the manager to wear a mask. So yes they are obligated to wear masks, but legal enforcement is going to be difficult at best. | (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? | 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. | Your right to have your horse not be killed is not a consumer right. "Consumer rights" are rights that you only have because you are a consumer. The issue described in the question is not about consumer rights. The sign tells you that there are risks connected to using the car park (obviously because there are lots of cars driving around, there might even be car thieves), and you accepted these risks. It doesn't give the shop permission to do anything they like. Instead of a horse, imagine a shop worker walking around with a hammer and smashing windscreens of cars; that sign isn't going to protect them. But a shop worker collecting trolleys might accidentally bump into your car, and the sign might protect them in such a case. I'd say spraying chemicals strong enough to kill a horse shouldn't happen at all (I suppose these chemicals could also kill a human), and definitely not when there is actually a horse present. To me, it's closer to the employee with a hammer than to the employee with shopping trolleys, so a court should find the shop liable. | Is it illegal to display a flag in front of a store? Maybe - not because it's a flag but because it could be an unlawful obstruction of the highway (which includes the pavement) contrary to section 137(1) of the Highways Act 1980: If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale. (i.e. £1,000) Many shops fall foul of this if they don't have a licence, especially with 'A' boards and goods displayed for sale. | 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. | Neighbors(including us) around the property started to mow the part in front of their yard(the weeds grew very high) and continue to do so(is it illegal for us to mow this overgrown land?). There are probably city codes around maintenance of lawns, cutting grass and clearing weeds. You should alert the relevant authorities and they will make sure that the maintenance occurs. You should probably not do it yourself since (a) you don't owe the owner any favors and (b) you might cause trouble for yourself. Recently there was some mowing by large tractors but very little was cut and most of it grew back. The question is really whether their activities bring them into compliance with applicable city codes or not. If they are compliant and you simply don't like how they maintain their property, that is tough luck. If they are not compliant, you are well within your rights to vigorously report them to relevant code enforcement authorities. This overgrown golf course is home to many wild animals(coyotes, snakes, foxes, alligators, etc..) See above 1) Is there any legal action that we can take to force the land owner to maintain the land? See above 2) Could this land somehow under some law be divided and given to the maintainers. This is an interesting question. Technically there are circumstances wherein you could take what's called adverse possession of part or all of the property. This would probably include doing things like actually residing on some piece of that land and establishing a residence there - perhaps getting mail or paying taxes there or paying utilities or operating a business - for a certain period of time without any interference from the technical owner. If you can meet the requirements of adverse possession then you might be able to become a legal owner. Unless you have little to lose, however, actually doing it might be difficult. 3) Is it legal to walk/drive on this land. (I see people walking their dogs, and driving atv's and motor bikes on the golf course) Unless you have been given notice otherwise, it is perfectly legal to walk wherever you like. It is the owner's responsibility to provide reasonable notice and take reasonable precautions against unwanted trespass; e.g., putting up a wall or fence, closing and/or locking a door or gate, posting signs and/or hiring security to patrol the property and enforce property rights - or occasionally checking to make sure their property isn't overrun with squatters. |
Is it technically legal to take a young child into an opposite sex rest room? It's pretty standard procedure for parents or guardians to take young children into whatever restroom is appropriate for the adult, regardless of rather that matches the sex of the child. I'm curious what the official legal rules are for escorting individuals into different rest rooms. Have laws explicitly spelled out that children under a certain age are allowed into any restroom, or is this one of those cases were it's technically illegal but no one cares enough to argue against it? If I (a male) was caring for a special needs individual who is older but at a young child's mental level of development and/or unable to use the restroom without assistance would It be legal for me to bring the individual into the male restroom in order for me to assist her in using it? I'm more interested in Federal law, but if these laws are usually state level then I'd be interested in my home state of Maryland. | There appears to be no general federal statute addressing the legality of a male entering a female-labeled bathroom, or vice versa, within federal jurisdiction. There are various regulations that touch on bathrooms, for example the OSHA regulations pertaining to sanitation require that "toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment in accordance with table J-1 of this section", but "Where toilet facilities will not be used by women, urinals may be provided instead of water closets". These are regulations imposed on employers, and there is no provision for enforcement by employers, for instance no clause saying that the employer must call the police, or in any way intervene or sanction an employee, if a person enters a bathroom of "the wrong sex". It is apparently not a crime, as reflected anywhere in the US Code, for a male to enter or remain in a female bathroom, or vice versa. Building managers have some discretion regarding the operation of federal facilities, for example courthouses, which could extend to requesting a male to not enter a female bathroom or vice versa, but there isn't a practical way to determine what departmental regulations exist that would allow eviction of a bathroom-cross-user. Federal law does not protect against sex/gender discrimination in public accommodations. As for Maryland law, the owner of private property has the right to control his property up to the point that state law take that control from him, and therefore in principle he could call the police to remove a person trespassing in a bathroom (this article addresses the trespass angle in North Carolina). Maryland does not appear to have any case law or statutory exception to trespass laws related to labeling of bathrooms, so enforcement actions would be at the discretion of the owner. At the lower end of the political hierarchy, Baltimore has an ordinance requiring single-use bathrooms to be gender neutral, and a proposal exists to enact a state law with this effect. In other words, there does not appear to be any direct, enforceable legal requirement regarding bathroom entry and sex. Trespass laws could be used, but are at the discretion of the property owner (who might be civilly sued for his actions, but the police don't decide the merits of a discrimination suit before evicting a trespasser). | tl;dr: no, they're not law yet. Background The two bills are different. A5217 proposes to create a juvenile alternative to the current community service program, and A1969 proposes changes to the state's anti-bullying law. It looks like they've reassigned the number "5217." The correct version of A5217 is at this link. A bill becomes law when signed into law by the governor. To be delivered to the governor, the bill has to pass both houses of the legislature. In order to pass in one house, the bill has to survive a full vote there. To be voted upon, a bill typically has to clear its committee. Sometimes that entails getting adequate support (like sponsors). Bills include the language "Be it enacted" because each house has to vote on the precise language the governor will eventually sign. A5217 is still in progress, meaning that it has yet to pass the Assembly. It has been introduced, referred to the Assembly Law and Public Safety Committee, and got a third prime sponsor (on May 24 DiMaso joined Lopez and McKnight as a sponsor). The companion bill, S3447, has been introduced and referred to the Senate Law and Public Safety Committee. A1969 has been introduced and referred to the Women and Children Committee. It does not yet appear to have a Senate companion. | "Kidnapping is the unlawful taking away or transportation of a person against that person's will" The crime would occur if the second person was taken by the first, the age of the perpetrator is immaterial to the commission of the crime but it will affect where and how it is prosecuted. The age of the victim will matter as the victim must be old enough to competently grant consent - if they are too young to do so then it will be a kidnapping. On the face of it "running away together" does not imply an unwillingness. Note also that kidnapping is the crime of "taking away"; holding a person against their will is the different crime of false imprisonment. | germany Ah, okay, there isn't any easy answer/number/table for this. In general, the "Aufsichtspflicht" results from Bürgerliches Gesetzbuch (BGB) § 1631 Inhalt und Grenzen der Personensorge. There are not clear cut lines or given ages. This is mainly because it does not make a lot of sense. A very independent and mature 6 year old can do things a less developed or even disabled person might not be able to do, even at the age of 18+. Generally speaking, the parents have the duty to care for the child, anything else can be handled by contracts. For example a contract with a kindergarten. Or School. Or private/public pool. From personal experience I can say this: Germany is very safe. Kids go to school on foot, on bike or longer distances by normal public transport among all the other adults. We do not have "school busses". Between 07:00 and 08:00 public transport is packed with kids of all ages going to school. Schools do not normally have their own stops. Kids get off at the nearest stop and walk the rest of the way. Around the school you will see streams of children coming from all directions on bike or foot. It is rare to see adults accompanying them, unless it's the first weeks of elementary school or the last day before school holidays where parents pick up their kids to do something fun after school. When I was a kid, I walked to school every day, almost from day one of elementary school. The first few weeks an adult would accompany us (one of the parents, they had a rotation going), then we walked on our own, as a group of 3-4 kids in the same class from the same neighborhood block. Google maps says it's a 10 minute walk of 800 meters. If any teacher had stopped me from leaving the school building on my own when school was finished, I am sure people would have wondered why. That only happened for mentally handicapped kids. Even kids who needed transport for one reason or another would just know to wait in front of the school. No teacher or other adult would be there. At 5th grade, I know half my class came by bike and in the winter or on rainy days by public transport, because they did not live in walking distance to the school. Neither did I, but I lived close enough to not get the public transport ticket subsidized, so the kids from our street got there by bike, or on foot when the parents deemed riding a bike to unsafe in snow and ice in winter. Who is responsible for the child now that the class has ended? The parents. Unless the contract says otherwise, or circumstances are exceptionally dangerous. There is no exact written guideline for this, because it would not make sense. The adult has to know what is exceptionally dangerous and what is not. It can be perfectly safe for a 10 year old to walk home through the woods. If that is what the parents deem okay, then it is okay. Yet as the adult in charge, you have the duty to keep them back, if you know the woods are on fire today, or a criminal escaped into the woods or something similar that would make it significantly more dangerous then the parents had in mind when they made their general decision. If a 10-year-old child says that their parents "said they could go home alone", can I reasonably stop them? If you have a contract that says they cannot go home alone, sure. If there is a special situation that implies the conditions have changed from what your contract said (lets say the radio broadcasts a storm warning and you see that the weather is horrible and branches flying around could injure a smaller kid) you can (maybe even have to), even if you do not have a contract. Otherwise... why would you? It’s their parents decision. If they had wanted you to keep an eye on their kids when the time is up, they would have made a contract that says so. | Yes, they're able to discriminate as long as its not illegal discrimination; and there's currently no law protecting people with these views. Both at a physical or digital store, they can be refused service and told to leave. | Indeed, article 3.24 of the Arbeidsomstandighedenbesluit: Toiletten en wastafels In een bedrijf of inrichting zijn in de nabijheid van de ruimten waar de werknemers hun werkzaamheden verrichten een voldoende aantal toiletten aanwezig. In of in de onmiddellijke nabijheid van de ruimten waarin de toiletten zich bevinden zijn voldoende wastafels. De toiletten of het gebruik van de toiletten zijn naar seksen gescheiden. My translation (intentionally less idiomatic than it might be in order to parallel the Dutch word order): Toilets and lavatories In a business or facility there are in the vicinity of the areas where the workers perform their work a sufficient number of toilets present. In, or in the immediate vicinity of, the areas where the toilets are, there are sufficient lavatories. The toilets or the use of the toilets are segregated by sex. It's a very long law, so I haven't read it all, but it doesn't seem to impose a penalty on people who disregard the sex segregation of the toilets. I suspect that it imposes a responsibility on the employer to enforce the segregation, and presumably a penalty could be imposed on the employer for failing to do so. I do not know what mechanisms would be available to the employer to penalize an employee who uses the wrong toilet. I don't know anything about the catering industry, and I cannot infer why you ask about it specifically. If you're asking about toilets provided by such businesses for their customers, however, I suspect it's likely to be governed by another law. (I further suspect that sex-segregated toilets for customers are optional in at least some circumstances, since small bars and restaurants often have only one toilet.) | Google is very helpful in this regard. I typed nyc restaurant bath and it suggested nyc restaurant bathroom law, the first result being http://www1.nyc.gov/nyc-resources/service/2360/restaurant-bathroom-requirements. It says: You can make reports about any food establishment with 20 or more seats that has no toilet and was established after 1977. These establishments must provide toilets for their patrons. Food establishments that have been in operation since 1977 or before are exempt from this requirement. Food establishments with 19 or fewer customer seats are not required to provide bathroom access to the public. Food establishments are not required to allow public access to their employee toilets. Patrons are not permitted to use any toilets where the patron must walk through the kitchen or any food storage or food preparation area. Call 311 to report a restaurant with 20 or more seats that has no toilet and was opened after 1977. | People aged 19 and 18 are "teens" and legally permitted to perform in pornographic videos. That's how it's legal. |
Suing over unjust inheritance distribution My grandfather owned a total of 60 acres of land in multiple places. After his death and with the lack of personal will, the land by law was supposed to be distributed equally among all of his children. Among those children was my father. The whole legal process started well, however, because of deceit and trickery (including my father's naivety), almost all of the land went to one of my uncles. My father never really actively pursued the right to regain back some of that land except for calling my uncle on multiple occasions, which resulted in hanged phone from my uncles side. Few months ago we had a family tragedy in which my father passed away. In the meanwhile, I became financially stable and started entertaining the idea of pursuing justice and regain a fair share of the my grandfather's land from my uncle. However, I have two questions: Should I first try and speak with my uncle, asking for him for a fair share of my grandfather's inheritance, but also mentioning to him that I'm also prepared to sue him in court for that? Should I get a lawyer and directly go to court, suing my uncle for the unjust outcome without any prior discussions with him? In the first case, I'm afraid that it could result in him suing me for extortion of something which was already signed to him (in this case, the fair share of my grandfather's land that should've belong to my father). I'm mostly asking so I could get my thoughts sorted out and decide what to do next. | You need to speak to a lawyer. First of all inheritance laws vary greatly from one location to the next, so you need someone who is familiar with your local laws and processes. You also need to collect all paperwork that's related to the inheritance. Typically an estate need to get "settled" and there is an official statement that (often issued by the town or a local court) that spells out all the details and conditions (if any). Try to document any type of follow up discussion or dispute in as much detail as possible including dates, means of interaction, topics, etc. Once you have all this, have a lawyer or equivalent look it over. They then can assess the legal situation and advice you on the best course of action. | The law regarding proof of service allows service of summons by publication in case a defendant "is not a resident of the state, but has property therein and the court has jurisdiction of the subject of the action". Plaintiff must file an affidavit saying that he believes that you are not a resident, and he either mailed the summons to you or states that your residence is unknown. Knowing how to contact a person is not exactly the same as knowing their residence, so the statement in the affidavit might be true. There is a one year limit on your right to defend and reopen if not served personally. The statute of limitations tolls after the cause of action has accrued (which I suppose would be defective service of the summons, viz. perjury in the affadavit). For recovery of real property, the time would be ten years. The court rules allow that "At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued". (This is clearly a matter that your attorney needs to address). | What happens when a person dies intestate is that the court appoints someone to be the executor. That person is supposed to settle the decedent's debts, and divide the remainder equally among the siblings. It is virtually guaranteed that the mortgage-holder will get their share – you can't just sell a house with a mortgage and run. In the meantime, the estate has to keep paying the mortgage and property taxes. The executor has wide latitude to dispose of the estate, and clearing out personal possessions is a necessary part of liquidating the estate. Those possessions being part of the estate, they "count", therefore that mink coat worth $10,000 can't just be "taken" by the executor in order to tidy things up. But that broken weed-eater worth $1 can just be thrown away and not stored for some months, waiting for the final reckoning. The executor is entitled to compensation for his work and reimbursement for his expenses, so nickle and diming the small possessions is probably economically counterproductive. The executor has the legal power to determine how the legally required distribution is carried out, that is, the law doesn't require a majority vote of the heirs in order to dispose of each and every item of property. If there is an actual legal dispute, if you believe that the executor is improperly carrying out the job, you can hire a lawyer to have him removed, or otherwise put pressure on him to get a change in how things are. This will probably cost you more than you might get from the estate. It is possible that the real estate market will not support the current sale price and therefore a lower asking price is necessary (i.e. the executor needs a reality check). A combination real estate agent + lawyer could help you figure out what to do with the house to make it sell. | Is this legal for the county to enforce? Yes. And can I sue if they try to enforce it? You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do. | Certain things are your separate property, and only you can sell them (but you are also responsible for them). That would include things acquired before the marriage; also anything inherited by just one of you, or gifts provably given to just one of you. Other things are community (marital) property, including your pants and probably your dog. Writing your name on the object or a piece of associated paper doesn't really matter, what matters is how it was acquired. One party can sell their half-interest in joint property, but nobody (?) would buy a property interest in a dog, they would buy the dog. For another person to actually buy a dog, they would have to buy a 100% interest in the dog, meaning that you would have to agree to the sale. When it comes to property with a solid title system, such as real estate, one party cannot sell the whole property without the consent of the co-owner. However, a co-owner could petition the courts to force a partition of the property, where the courts would order that the proceeds be divided equitably. Ohio law on division of marital property is spelled out here. Getting a lawyer is really the only reasonable solution. You can't just "put a block" on selling stuff. If you want the tools, somebody has to collect the tools and take care of them, and they can't just break in to the house in the middle of the night to do this. | There is no requirement that a will, or a trust created by a will, be "fair". The will could have left $500,000 in trust for one set of siblings, and $5,000 to another set. It could specifically exclude one beneficiary from some of the benefits, or specify an unequal division. That is all the choice of the testator. As described in the question, the trust does seem likely to give greater benefits to one set of children than to their cousins. Unless there are grounds to upset the will, that is just how it is. However, the wide "absolute" discretion granted to the trustee might allow the trustee to modify this outcome, but the trustee is not allowed to simply rewrite the trust. How much the payments can be varied will depend on the exact terms of the trust. It does sound as if this trust was not worded as carefully as it might be, since it does not specify a ration when the trust is to be split. The designated relative can decline to serve as trustee, then any specified alternate would serve, or if there is none, or none who will serve, the court would appoint a trustee. | A person can decline to accept an inheritance under the law of India. The mechanism for doing so depends upon the stage of the probate process at the time and the nature of the property, and often involves a notarized document, or a letter clearly expressing an intent not to inherit. In those cases, the person declining to accept an inheritance (an action sometimes called a "disclaimer" or "renunciation" of an inheritance), and all of that person's descendants, are treated as if they predeceased the decedent from whom the inheritance derives, for purposes of further distribution of the inheritance. | Check your local law. In Washington, the chapter RCW 63.21 says what you are supposed to do. The first part of the law has apparently been satisfieds: Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claim the found property Then you need to get a signed appraisal stating current market value from a qualified person engaged in buying or selling the items, or by a district court judge (I have no idea where district court judges get their qualifications to appraise bricks), then within 7 days, report this to the cief LEO where the stuff was found (and surrender it, if requested). You also have to serve written notice upon that officer stating your to claim the property. The burden now shifts to the government, which must publish notices in a local newspaper at least weakly, for 2 weeks. The notice might be publishable in a no-cost venue, in case the publication cost is greater than the value of the stuff. If the owner appears and establishes ownership, that's the end of the finder's potential interest. If the owner does not show up, the property will be released to the finder once he has paid the government's publishing expenses plus $10, but if the goods are appraised at less than publishing cost, there is no fee. As a finder, you have 30 days after that 60 days to pay required costs, otherwise it goes to the government. There are some exceptions, things not subject to finders-keepers (crab pots, secured vessels, motor vehicles, unclaimed property in the hands of a bailee). If you do not comply with these requirements, you forfeit any right to the property and you are liable to the property owner for the value of the bricks. Under the definition of theft, you have a defense that The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable since you presumably intend to claim ownership of the bricks under the lost property statute. |
Is it illegal to throw away the previous tenant's mail? Say I move into an apartment. And over the next months and years, I keep receiving mail for the previous tenant, whom I do not know. This is understandably annoying. The easiest and most convenient approach for me is to just throw away his mail – but would I be breaking any law if I did so? | Do not throw away mail that is not addressed to you. If you receive misaddressed mail, write "Not at this address" on the envelope and put it in a mailbox, or give it to the mailperson (source: United States Postal Service - Reporting / returning misdelivered mail). Also, if you contact USPS they may redirect the misaddressed mail for you. 18 U.S. Code § 1702 - Obstruction of correspondence Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both. | If you want to get out, and are willing to lose $270, you can not sign the lease and demand a return of your security deposit. You could ask for a return of the other fees as well, but you are less likely to be successful. They would probably have trouble enforcing a security deposit against you if you didn't have a lease with them, and would probably have trouble demanding you sign a lease when they changed the unit. You should probably get it all back, because you applied for it, but it probably isn't worth litigating over. I would also encourage you to turn to social media sites if they have one, or to sites like Yelp, if they do not. Many businesses are sensitive to this and if you are truthful if could provide you with some leverage. | No. Theft is, in most jurisdiction, an action by which the offender takes another person's property with the intent to permanently deprive them of it. The clerk isn't taking any property from the store, and she doesn't have any intent to deprive the store of anything. She is therefore not guilty of theft. If she were doing this intentionally -- either in league with the customer or even without the customer knowing -- she could likely be held liable for the theft, either on a conspiracy theory or perhaps an innocent-agency theory. The lack of criminal liability of course does not mean that there can be no accountability. The employer is free to terminate the employee, and it will have different options -- depending on jurisdiction -- to recover the value of the uncharged printers, perhaps by docking her paycheck or through a negligence action. | do I have a case against them in small claims court? Yes. Your description altogether indicates that there is --at least-- an implicit contract between you and the roommates. That implicit contract is palpable from the roommates' subsequent conduct, which includes --but is not necessarily limited to-- their excuses and promises. Although there is no written contract between you and the roommates, evidence that you have paid utilities in full places on your roommates the burden of disproving the default (and common sense) presumption that bills would be split among all four roommates. Your landlord can testify via an affidavit what he knows about that arrangement and/or what he informs each new roommate on the issue of how utilities are paid. You might want to email your roommates a reminder [to pay you] in such a way that prompts them to reflect their excuses/promises/admissions in writing. The terms of their written response might evidence an oral agreement. In the alternative, the roommates would have the burden to prove that they paid you, or that you promised to cover their utilities for free. The former scenario is precisely why a reasonable payer typically requires --or should require-- a receipt when making payments (as opposed to the payee when receiving them). Regardless, your description suggests that your roommates would be unable to prove either scenario. Also the landlord could include in his affidavit that the roommates have defaulted on their rent payments as well. If the landlord refuses to produce an affidavit, you can always visit the court where eviction proceedings are taking place and obtain copy of the relevant records. With those records you would evidence the roommates' pattern of lack of payment. Although obtaining copies from the court makes your landlord's affidavit somewhat unnecessary, it is in the landlord's best interest to cooperate with you because (1) it would be unreasonable for him to alienate himself from the only tenant who honors his lease, and (2) he might need your cooperation as witness at some point. Even if the roommates were successful in proving that there was neither a verbal agreement nor an implicit contract but only "unfounded expectations" on your part, you could ask for a ruling in equity in case your claim of breach of contract fails. In terms of mere "expectations", it is much more reasonable for you to expect them to pay their share than for three three individuals to presume an unrelated roommate will cover their utilities for free. The latter just departs from common sense and common practices. how do I prevent this from happening again with future roommates? Strictly speaking, it is impossible to absolutely prevent that situation from occurring again. However, you may take the following precautions to reduce your exposure. Have your roommates sign an agreement that reflects each party's obligations and deadlines. Your agreement should also state that it is each roommate's responsibility to keep his/her receipts --or akin evidence-- in case a dispute for non-payment arises. This would streamline the production of evidence if the matter ends up in court. Consider whether or not asking each party for an aval or endorser is practicable. This provides some sort of "insurance" of roommates' default risk. Lastly, do not wait for a party's debt to accumulate that much before taking legal action. The longer you wait, the unlikelier you are to recover that money because the party may go broke or simply disappear. Moreover, keep in mind that if a party's debt exceeds the maximum amount handled in Small Claims Court, your litigation will become more involved because it would have to be in a court of general jurisdiction (meaning a circuit or district court). | From the time that the lease expired and you remained with permission, you had a shorter period of obligation and protection. I assume that the lease ended long ago, and you've been living there month to month. Assuming that we can read "two rental periods" as "two whole months" (if there is something else in the lease that indicates this, such as a rent due-date), then we can interpret the notice requirement as saying that you must give notice before the first of the month 2 months before the intended end of tenancy – that is one meaning of the lease. Another meaning is that you can give notice 58 days in advance. The lease has an ambiguity as to what the notice requirement is. Since you did not write the lease, and they did (well, someone, whose obligations they inherited, did), the ambiguity is construed against the party to wrote it. In the present circumstance, because you want to leave soon, you would not be held to the notice requirement that favors the landlord. It's entirely non-obvious why such wording would be used. In 504B.135, the statutes say (a) A tenancy at will may be terminated by either party by giving notice in writing. The time of the notice must be at least as long as the interval between the time rent is due or three months, whichever is less. (b) If a tenant neglects or refuses to pay rent due on a tenancy at will, the landlord may terminate the tenancy by giving the tenant 14 days notice to quit in writing. Once you're past the end of the lease, you are a tenant at will, by the definitions section: "Tenancy at will" means a tenancy in which the tenant holds possession by permission of the landlord but without a fixed ending date. Assuming that you pay rent at the first of the month, then the lesser of a whole calendar month and three months is, obviously, a whole calendar month. The stuff at the end of the statute that you cite – "The notice must be in writing and direct the tenant's attention" – is addressed to the landlord's notice to tenant, where he says "Your tenancy will not auto-renew". This applies to leases of 2 months or longer, not recycled 1 month leases, and requires the landlord to give the tenant appropriate notice (it does not define the tenant's notice requirement). | The real story is that the articles you link to are logically fallacious. The first hedges its assertions by saying a mailbox is "effectively considered" to be federal property. It cites 18 USC 1705, which it correctly notes "puts your mailbox under Federal jurisdiction." But that's not the same as assuming ownership of it. The piece also says that you "effectively lease" your mailbox to the federal government, which is a somewhat exaggerated way of putting it, but even if we accept it at face value it falls far short of a claim that the mailbox is federal property. The second concludes that mailbox tampering is a federal offense because "the mailbox belongs to and is controlled by the USPS." There is no evidence offered to support the assertion of ownership, and there is of course an alternative explanation for the fact that mailbox tampering is a federal offense, which is that there are laws such as the aforementioned 18 USC 1705 that prohibit it. These laws, however, say nothing about ownership. The third is ultimately based on the assertion of a letter carrier who said, "Listen, lady, your friends don’t own these mailboxes. We do." The claim was made in explanation of the prohibition against private individuals putting items into a mailbox. As far as I can see, the article is off the mark in another way: that prohibition has nothing to do with safety and security, but rather with protecting the postal service's revenue: it arises from 18 USC 1725, which explicitly is about avoiding the payment of postage. In any event, it does not establish ownership. In short, the idea that all mailboxes are federal property is a myth, as implied by the USPS page you link to. To what extent do property owners have control over their own mailbox? To a fairly high extent, but they do need to comply with the relevant law. They can't, for example, hang a plastic bottle by the roadside for the purpose of receiving their mail. Can they deface or place non-mail in their own mailbox? 18 USC 1705 actually prohibits willful or malicious injury, tearing down, or destruction of a mailbox, not defacing. So technically, they could, but a prosecution seems highly unlikely. Under section 1725, placing non-mail in the box is only prohibited to the extent that there is intent to avoid paying postage. That would be difficult to establish for someone putting something in their own mailbox. Can they tear it down with no intent to replace it? If they're willing to forego mail delivery, yes. They may be able to arrange to have the mail held for retrieval at the post office. If they do not, their mail will be returned to the sender as undeliverable. This arises from the Domestic Mail Manual, which says (in general) that "customers must provide authorized mail receptacles or door slots" as a condition of city delivery (I could not find a corresponding requirement for rural delivery, but it must exist somewhere). The manual also describes requirements for customer mail receptacles. | You aren't allowed to open it or destroy it. (18 USC 1702). USPS says (at http://faq.usps.com/): If the mailpiece is delivered to the correct location but the recipient on the mailpiece does not reside at the address: Write "Not at this address" on mailpiece. Don't erase or mark over the address. Provide the mailpiece to your mailperson or drop into a Collection Box receptacle. Destroying mail that was not intended for you may be prohibited by US laws. Willfully destroying mail is an act that may be punishable by the Federal Government. | 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. |
Judge to jury instruction in shooting of Colten Boushie case I was told that with the following instructions the judge asked the jurors to acquit Mr. Stanley. Is that so? You must not find Gerald Stanley guilty unless you are sure he is guilty. Even if you believe that Mr. Stanley is probably guilty or likely guilty, that is not sufficient. In those circumstances, you must give the benefit of the doubt to Mr. Stanley and find him not guilty because the Crown has failed to satisfy you of his guilt beyond a reasonable doubt. ... If you have a reasonable doubt about Mr. Stanley's guilt arising from the evidence, the absence of the evidence, or the credibility or the reliability of one or more of the witnesses then you must find him not guilty. In short, the presumption of innocence applies at the beginning and continues throughout the trial, unless you are satisfied after considering the whole of the evidence that the Crown has displaced the presumption of innocence by proof of guilt beyond a reasonable doubt. See Shooting of Colten Boushie and full transcript of the instructions. | No They look like pretty standard jury instructions to me. The only odd bit is “sure he is guilty” - that’s not what “beyond reasonable doubt means” and, at least in Australia, judges don’t tell jurors what it means, that’s one of the things they have to decide for themselves. However, in context, where the term “reasonable doubt” is clearly used latter, it’s probably ok. | He is probably guilty of negligent homicide or involuntary manslaughter, at most (a minor felony), and is possibly not guilty of a crime at all. The primary distinction between classes of homicide is mens rea (i.e. intent). The only affirmative act he took was to move the pillow. He did so both without intending to or knowing that he would kill Jane (the intent necessary for murder), and also, without clear actual knowledge that he would be creating a risk that Jane would die (a reckless state of mind that would support a conviction for manslaughter). Also, note that Walter himself, at this time, is not engaged in a felony, so he is not guilty of felony murder. We can presume he is present with the consent previously given of the owner of the property and did not mean anyone any harm. Likewise, this is not what is meant by "extreme indifference" for purposes of a murder statute, the paradigm of which is shooting randomly into a crowd knowing that someone will almost certainly be killed without knowing or intending that any particular person will die. The mental state necessary for negligent homicide is the equivalent of "gross negligence" in a civil case and is called "criminal negligence" in a criminal case. To be criminally negligent a person must fail to perceive a substantial and unjustifiable risk that a certain result will occur, and the risk must be of such a nature that the defendant's failure to perceive it constitutes a gross deviation from a reasonable person's standard of care. If a jury found that a reasonable person ought should clearly know that moving a pillow put Jane at risk of dying, then he might be guilty of criminal negligence. But, if a jury found that a reasonable person would not know that moving the pillow put Jane at grave risk of death, his action would not be criminally negligent. There are also at least three questions of causation which is not entirely independent of the question of negligence. First, generally an act is only considered a cause of a consequence if it is a foreseeable result of the action. If Jane's vomit caused death is not a foreseeable result of moving the pillow, then her death might not be legally caused by moving the pillow. Second, how likely is it that she would have died even if Walter had never entered the room. There are lots of ways that the pillow could have been jostled during the night leading to the same result. If it likely would have happened anyway, Walter's involvement might not be the legal cause of the death. Third, how much fault should be attributed to Jane? This is closely related to the second question. If her death was primarily caused by her getting dangerously high and placing herself in a vulnerable position, perhaps Walter's involvement is not a meaningful cause of the death. A New Mexico court has held that the defense that the victim was negligent has value only if it establishes that the victim's negligence was the sole cause of the accident. State v. Maddox, 99 N.M. 490, 660 P.2d 132 (Ct. App. 1983). But, what about Jesse's negligence? Under a relevant standard criminal jury instruction in New Mexico: The State must prove beyond a reasonable doubt that the defendant's act was a significant cause of the death of __________________ (name of victim). Evidence has been presented that the negligence of a person other than the defendant may have contributed to the cause of death. Such contributing negligence does not relieve the defendant of responsibility for an act that significantly contributed to the cause of the death so long as the death was a foreseeable result of the defendant's actions. However, if you find the negligence of a person other than the defendant was the only significant cause of death, then the defendant is not guilty of the offense of __________________ (name of offense). Caveat: A number of states impose strict criminal liability on drug dealers, often for murder, if someone died from using a drug sold by them, but often it has to be a child, and often the drug has to be the proximate cause of death, e.g. due to an overdose or impurity in the drug. I would presume that Jesse and not Walter supplied the drugs to Jane, that Jane is an adult, and it is not obvious that the drug itself (as opposed to the vomiting due to the manner in which the drugs were used) was the proximate cause of death, so a statute like this might not apply in any case. This brings us to the hard part of the question: Without the pillow Jane rotates on her back and starts to vomit and cough, still sleeping. At first Walter tries to react, running to the other side of the bed to help her, but then he stops and decides to do nothing as she dies. Note that if Walter had moved the pillow without knowing that he was creating a risk, left the room ignorant, and then this happened, surely Walter would have no legal liability for Jane's death. If Walter develops the necessary intent for criminal liability, this probably doesn't happen until he observes that she is starting to choke on her vomit and might die. Even then, he does not intend for Jane to die and probably doesn't even know for certain that she will die from his inaction, so he is probably, at most reckless, if he has a duty to rescue for criminal law purposes. Generally, under both civil and criminal law, there is no duty to rescue, even if you can do so without any risk of harm to yourself. But, there is an exception, at least in civil liability, for a duty to rescue that arises from the fact that you put the person at risk of peril through your affirmative actions. Does this apply here, at all, or in a criminal case? The first question is the exact language of the homicide statute. Some homicide offenses require affirmative acts, while others can arise from acts or omissions where there is a legal duty to act. Every crime requires some voluntary act or omission, and the voluntary act itself was not a crime and perhaps was not even a tort, at the moment it was taken, because Walter did not realize that his act created a risk of harm. He create a peril, but he did so innocently. A pretty standard formulation is that an omission is only a crime when the law creates a legal duty to act, but this is, of course, a question begging standard as it doesn't clarify whether there is a legal duty to act, which is at issue here. As the previous link notes, creation of a peril can give rise to a legal duty to act, but only sometimes. (4) Duty arising from creation of peril. If a person acts culpably to imperil another, he or she has a legal duty to rescue the victim. The cases are split on whether a duty to rescue arises if someone innocently or accidentally imperils another. This case would fall in the category of someone who innocently or accidentally imperils another, in which the cases are split, which which the linked article cites the following authority: Compare Commonwealth v. Cali, 247 Mass. 20, 24-25, 141 N.E. 510, 511 (1923) (defendant under duty to try to extinguish a fire that he accidentally set to his house and thus was guilty of arson when he did not) with King v. Commonwealth, 285 Ky. 654, 659, 148 S.W.2d 1044, 1047 (1941) (defendant who, in lawful defense of a third person, shot and wounded an attacker was under no duty to seek medical attention for the wounded assailant). A commentary that is part of a California standard jury instruction (for involuntary manslaughter, not murder for which this kind of liability is presumably not available) makes the following observation: A legal duty to act may also exist where the defendant's behavior created or substantially increased the risk of harm to the victim, either by creating the dangerous situation or by preventing others from rendering aid. (People v. Oliver (1989) 210 Cal.App.3d 138, 147-148 [258 Cal.Rptr. 138] [defendant had duty to act where she drove victim to her home knowing he was drunk, knowingly allowed him to use her bathroom to ingest additional drugs, and watched him collapse on the floor]; Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 456 [30 Cal.Rptr.2d 681] [defendant had duty to prevent horses from running onto adjacent freeway creating risk].) These examples would suggest that an innocently or accidentally created risk is sufficient to create a duty sufficient to support involuntary manslaughter liability for an omission under California law, and would probably lead to involuntary manslaughter liability in the case in the question as well, under California law. New Mexico, unlike California, does not have a standard criminal jury instruction or really definitive section of its criminal code that clearly resolves this question, although the fact that California which uses a murder, voluntary manslaughter, and involuntary manslaughter distinction in the same way that New Mexico does, limits criminal liability for omissions to involuntary manslaughter suggests that New Mexico would as well. The New Mexico case State v. Greenwood, 2012 -NMCA- 017, 271 P.3d 753 (N.M. App. 2011), touches on the issue, suggesting that there may be liability only for involuntary manslaughter (or certain specialized crimes based upon a relationship such as that of a nursing home to a resident of a nursing home) based upon an omission, and that the liability for an omission can only arise when there is a legal duty, but almost implies that only contactual duties are sufficient. It does so at paragraph 35 which says: Importantly, even if the LINKS contract relating to Jared were to have been renewed and to have been in force at the time of Jared's death, we are not convinced that it would be the sole basis or even a controlling factor in determining Defendant's legal responsibility under the Act. Defendant's criminal liability must exist solely based on an omission— a failure to act when she had a legal responsibility to act. See Deborah A. Goodall, Penal Code Section 22.04: A Duty to Care for the Elderly, 35 Baylor L.Rev. 589, 594 (1983) (stating that " authorities have long agreed that before an omission can constitute an offense[,] there must first be a duty to act" ); see also People v. Beardsley, 150 Mich. 206, 113 N.W. 1128, 1129 (1907) (" The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death." (citation omitted)). But, this could be dicta because it was a case where any legal duty would arise under contract rather than for another reason, and as is the case in many smaller states, there is simply no case that has ever been decided in New Mexico which is squarely on point. Under British criminal law, in similar circumstances, a homicide conviction was vacated: R v Khan & Khan (1998) CLR 830, confirmed that there is no separate category of manslaughter by omission unless the omission constitutes a breach of duty to act. The defendants supplied a 15-year-old prostitute with twice the amount of heroin likely to be taken by a regular user. The defendants left her unconscious in the flat, returning the next day to find that she had died of the overdose. Had medical assistance been called, the girl would probably not have died. The unlawful act was supplying the drug but the death was caused by the quantity injected by the victim. The trial judge invited jury to consider liability on the basis of the defendants' failure to summon medical assistance. On appeal, the conviction was quashed because the brothers had not accepted a duty to act before she took the heroin. A dissertation on when criminal liability is imposed for omissions in Scottish law can be found here. New Mexico, whose laws really should govern, has just two homicide statutes: § 30-2-1. Murder A. Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused: (1) by any kind of willful, deliberate and premeditated killing; (2) in the commission of or attempt to commit any felony; or (3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life. Whoever commits murder in the first degree is guilty of a capital felony. B. Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another. Murder in the second degree is a lesser included offense of the crime of murder in the first degree. Whoever commits murder in the second degree is guilty of a second degree felony resulting in the death of a human being. Walter doesn't qualify for any of these prongs of the statute. § 30-2-3. Manslaughter Manslaughter is the unlawful killing of a human being without malice. A. Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion. Whoever commits voluntary manslaughter is guilty of a third degree felony resulting in the death of a human being. B. Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection. Whoever commits involuntary manslaughter is guilty of a fourth degree felony. Clearly, Walter also does not qualify as guilty of voluntary manslaughter. There is no quarrel or heat of passion. So, either Walter is guilty in New Mexico of involuntary manslaughter, or he is not guilty of homicide at all. New Mexico also has an unusual, and rather merciful "excusable homicide" provision at New Mexico Statutes § 30-2-5, that should also be considered: Homicide is excusable in the following cases: A. when committed by accident or misfortune in doing any lawful act, by lawful means, with usual and ordinary caution and without any unlawful intent; or B. when committed by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, if no undue advantage is taken, nor any dangerous weapon used and the killing is not done in a cruel or unusual manner. Arguably, Walter falls under "excusable homicide" part A, as moving the pillow was a lawful act done without unlawful intent and that is what caused the death. | Yes, one should not publish evidence until a verdict is reached. This includes any possible appeals. In common law, doing so has long been one of the contempt of court offences called sub judice, or "publishing information that interferes with a fair trial". The main point is that the jury should not be influenced by any information other than what they hear in the courtroom. In New Zealand, the offence was recently codified. | Short answer, yes, jurors will typically render a decision of guilt vs. innocence. This is pretty common in nations where the legal system is derived from British Common Law (about 2 billion people world wide live in a Common Law nation). The U.S. is unique in that it uses juries for Civil Trials as well as Criminal Trials. The right to a trial by jury is guaranteed in the U.S. Constitution in which the 6th amendment guarantees the right to trial by impartial jury (contrary to popular opinion, it is not a jury of peers, as this alludes to the Peerage systems, which the U.S. never adopted). That line is from the Magna Carta which was influential in the drafting of the U.S. Constitution and Bill of Rights. A jury usually consists of a panel of 12 people pulled from the locality of the crime, unless a change of venue has been granted because the alleged crime is so well known an impartial jury cannot be seated from the population. The jury will hear all the evidence from both sides, as well as opening and closing arguments. They will be provided "jury instructions" by the judge and must find if the evidence presented (The Facts) meet the criteria for a conviction of a charged crime (The Law). In all Jury Trials, a Jury fills the role of "Trier of Fact" while the Judge fills the role of "Trier of Law." While the judge has the education background to understand what the law says constitutes a crime and how to find that law as well as how to make sure the defense and plaintiff/prosecution make fair arguments, any random group of 12 people can understand facts and put together whose story they believe, the defense's or the prosecution's. In the case of an innocent person being convicted due to inept defense, this does happen and is horrible, but there are recourses in the form of appeals courts, which can overturn a trial and order that a new one be held (a mistrial, essentially, the original trial never happened and the person is legally innocent. Try again and do it proper this time.) Ineffective assistance of counsel is a valid grounds for appeal of a conviction and does happen. In the other scenario, an inept prosecution, this does happen as well and it's not the fault of the jury that the guilty person went free, but for the prosecution. The prosecutor is at a disadvantage in every criminal case to balance out the fact that their office has more resources to bring to bear then most defendants. Among these handicaps is that their "story" about what happened must not have any "plot holes" in it (beyond a reasonable doubt evidentiary standard of proof) and that the prosecution has to convince 12 people that their story is the only way this could happen (try convincing 12 random people to agree to anything more complicated than "the sky is blue and grass is green") and they only have one shot to do it (Double Jeopardy essentially bars the prosecutor's office from initiating the appeals process... and blocks someone who is declared innocent from doing it because why the hell would you want to?!). Here, the problem is that the Prosecutor doesn't have to charge the accused right away and has a bit of generous time to investigate (depends on statute of limitations on particular crimes) ... but the right to a speedy trial means that once charges are filed, the clock starts on how long the prosecution has to bring the case. Delay to long and the judge will give a directed verdict that the person is innocent because the prosecution wasn't ready. The importance of this fact that is a staple belief of Common Law is in the "Blackstone Ratio" which states: Better that 10 guilty people go free than a single innocent person suffers So the jury finding the prosecution inept is certainly the prosecutor's problem, not the jury's problem. It's a feature not a bug. If an innocent person does suffer, then we have a bug and we must see that it is corrected. As a final note, the jury also has the power of Jury Nullification of the Law. In the U.S. it's not really certain if Jury Nullification invalidates the law completely but in effect, it allows the Jury to declare a person innocent because, while they believe the prosecution's story that the defendant did what they were accused of, they don't believe this person should be convicted because they believe the crime they're accused of should have never been a crime in the first place. | The defense lawyer has the duty to do the best for his client. The client will be convicted if he or she is guilty beyond reasonable doubt. If the lawyer can create a reasonable doubt and manages to free his client then he has done a good job. So yes, if the lawyer knows that some other person might have committed the crime, to the degree that it creates reasonable doubt, then the lawyer must raise this. Of course if it turns out that there is just some phantasist making wild accusations, that might not be helpful. | 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 specific elements of the crime in question are going to be defined by Maltese law, which appears to be a blend of a European-style civil code with English-style common law. However, under ordinary Anglo-American standards, the alleged acts do seem to meet the legal definitions of these terms. At common law, an "assault" consists of placing someone in fear of an unwanted touching, and a "battery" is a completed assault; that is, an actual unwanted touching. If Mr. Suda, as alleged, took the victim's hand and touched it to his own genitals, without her consent, he committed an assault and battery. Any touching can constitute a battery, from a tap on the shoulder to a bullet in the head. Likewise, at common law, "violence" is any degree of physical force. If he tricked her into touching his genitals, that would not be a crime of violence; if he physically moved her hand to his genitals with his own hand, then he used physical force, or violence, to commit the crime. Again, what actually needs to be proven will depend on specifics you would need a Maltese lawyer to go into--but under general common law principles, neither "assault" not "violence" are particularly surprising. | Charlie may or may not be guilty of murder or of attempted murder. It depends upon his intent and knowledge, which the question doesn't flesh out sufficiently to evaluate. Why did Charlie bodyslam Bob? The reason matters a lot. Did Charlie know that the building was on fire? Was Charlie trying to kill Bob? Was the thing that Bob knocked his head upon an intended result of the bodyslam, or an intervening cause? Did Charlie's initially less culpable act and his knowledge combine to create a duty to rescue and what offense (probably not murder) would it be if a death resulted from a failure to rescue? Alice is likely to be guilty of murder, but on a felony-murder theory, rather than on a transferred intent theory. In most, but not all, states if you are in the process of committing one of an enumerated list of specific felonies that pose a high risk of serious injury or death, such as arson, you are guilty of murder in the event that anyone (even a co-conspirator) dies as a result of your felonious course of conduct, whether or not you intended that a death result. Alice might have been able to purge her felony-murder liability if she had tried to put out the fire and save Bob once she realized that he was in danger, under the exception to felony-murder for renunciation of a course of felonious conduct, but she didn't even try. The doctrine of transferred intent in a murder case usually applies when you intent to kill one person and instead end up killing someone else. But, Alice didn't intend to kill anyway, so this doctrine does not apply. Alice's best defense would be that the death was a result of the attack by Charlie, rather than by the fire, which she would merely have to establish a reasonable doubt regarding. But, ultimately that would be a weak defense for her. |
Can "Double Jeopardy" be a loophole for murder? Hypothetical facts: A is tried and acquitted for the murder of B. B was only presumed dead but was actually alive. After being acquitted for Bs murder, A actually murders B. A is later arrested and tried for Bs murder (a second time). Question: Can A raise Double Jeopardy as a legal defense in the second murder trial? Jurisdiction: U.S., California | Short Answer No. Double jeopardy of the Fifth Amendment to the United States Constitution prohibits someone from being prosecuted more than once for the same factually specific crime (i.e. "the same offense"). The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The original acquittal was correct, because it was for a crime that did not happen. The later trial is for a different crime that actually did happen at a different time. In the same way, an acquittal for a DUI committed on Tuesday does not bar prosecution of the same defendant for a different DUI committed on Thursday. So, double jeopardy does not apply in the scenario presented. A Similar But Harder Case The analysis would be trickier if: A shoots B. A is tried and acquitted for the murder of B. B was only presumed dead but was actually alive. After being acquitted for Bs murder, B dies of the gunshot wound from A in (1). A is later arrested and tried for Bs murder (a second time). This is a much trickier question, because A was actually tried and acquitted of a crime that hadn't been completed at the time of trial, but in which A's involvement had terminated at the time. (To make it even more complex if you are inclined, in a first degree kidnapping case, the death penalty applies unless the defendant can prove the affirmative defense that the victim didn't die, and a first degree kidnapping acquittal would probably not bar a later murder conviction because the offenses have elements sufficiently different from each other, even though the death penalty or life in prison without parole sentence for that offense is based on the conclusive presumption that the victim died in law, rather than in fact.) Issue Preclusion This might depend upon the nature of the evidence at trial - if A did not raise the failure of the prosecution to provide corpus delecti (i.e. a dead body) or the misidentification of an alleged victim's body as a defense and instead, for example, argued an alibi defense (e.g. he was in jail at the time of the alleged shooting). This narrow fact pattern would be a particularly close question and I wouldn't be surprised to see a court deviate from the usual precedents and general rules under these circumstances. There is a substantial body of case law on whether prosecution for a crime with elements A, B, and C bars prosecution for a crime with different elements arising from the same facts and circumstances (e.g. if acquittal of a lesser included offense whose elements must all be proved to convict on the more severe offense provides double jeopardy protection), that wouldn't be directly applicable in my alternative scenario because the offense tried the first time and the second would have exactly the same elements. This depends upon when a concept analogous to the principle of collateral estoppel (also known as "issue preclusion") in civil cases, in which facts previously litigated can bind a party in a later lawsuit, with or without constitutional double jeopardy dimensions, applies in criminal cases. As a general rule, there was historically no doctrine of collateral estoppel in criminal cases as noted in a 1967 law review article. But, the U.S. Supreme Court has also adopted a limited version of the principle of collateral estoppel under the guise of the double jeopardy clause in criminal cases as it noted in Yeager (discused below) a few years after that article was written. [I]n Ashe v. Swenson, 397 U. S. 436 (1970). . . we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. The hard question is determining what a jury's acquittal "necessarily decided" in particular facts and circumstances, given that a jury verdict in a criminal case typically only determines if the jury convicted, acquitted, or hung on each of the charges presented to it in the indictment and not dismissed before tiral. This analysis requires the court to assume that the jury acted rationally, even if extraneous facts allow us to know that it did not act rationally, and to determine that a prior acquittal was logically inconsistent with a new conviction. In Yeager v. U.S. (2009), however, the U.S. Supreme Court interpreted Ash v. Swenson narrowly. It held that hung juries on counts should be ignored for constitutional purposes as if that the trial of that count never happened. When Is A Murder Committted? There would also be a question of when the crime of murder is committed (i.e. when the acts are taken or only once someone dies). Generally, murder is not a complete crime until someone dies. For example, if you were prosecuted for murder before someone died and acquitted because they were alive, you could be prosecuted again for murder later if they died of their injuries. (The more usual case is that someone is tried and convicted of assault, then the victim dies, and they are retried for murder, which is allowed since a conviction for assault is not logically inconsistent with a conviction for murder.) Similarly, if you were convicted of murder after a fair trial and presented the live body of the victim as newly discovered evidence, there is a good chance that you could have the original conviction vacated. If, however, you were convicted, and the Court found that you knew that the victim hadn't died at the time of trial, but you did not raise the fact that the victim wasn't dead, it isn't clear if you could have the original conviction vacated because it was a fair trial and you knew evidence sufficient to get yourself acquitted (which you may have refrained from presenting to avoid conviction on a lesser charge like kidnapping or aggravated assault), and the status of an "actual innocence" grounds for vacating a conviction after trial is hotly disputed, conservatives like the late Justice Scalia generally say "no", liberals generally say "yes", moderates like to say "yes" but make it almost impossible to establish except in rare cases like one where a live person walks in when there was a murder conviction for killing that actually living person. Obviously this doesn't come up all that often because usually prosecutors don't bring murder cases until they find a body and identify it and aren't in a rush to do so because there is usually no statute of limitations for murder. Conclusion In The Harder Case My overall conclusion is that double jeopardy would not apply even in the much closer case. This is because a belief that the victim was not dead could have been a basis for the original verdict notwithstanding a presumption to the contrary. The jury knows that a death is a element of murder and might have acquitted not based upon the reasons presented to it at trial but based upon their own personal view that the failure to present a body left them with reasonable doubt for some reason or another, which is a perfectly plausible scenario. If this happened, an acquittal the first time and conviction the second time wouldn't be inconsistent, even if no one argued about a lack of a body in their trial presentation. Ironically, if A was acquitted of aggravated assault of B in the first trial, that would be far more likely to bar a conviction when B later dies, than an acquittal from a charge of murdering B, because murder is logically inconsistent with an acquittal of aggravated assault in most circumstances, but a previous murder acquittal based upon lack of proof of a dead body is not inconsistent with proof of a later death. But, this would still be a close case that could come out either way on the double jeopardy issue. A court could conceivably argue that if the death of B was not contested at trial, that the first murder acquittal would be inconsistent with a murder conviction upon the death of B later on from the events that formed the basis of the first prosecution. Tactical Considerations Of course, even if prosecution of A for B's murder the second time was not be barred by double jeopardy, it is still likely that the prosecution would agree to lesser charges or not prosecute because the first acquittal showed it was a weak case, and the fact that A would now also be able to argue that the gunshot was not the proximate cause of B's death (and that it was instead, for example, due to medical malpractice or was a de facto suicide due to refusal of adequate treatment). Scope Of Analysis This reasoning would apply anywhere in the U.S. and is not specific to a particular state or territory as double jeopardy is a principle of U.S. Constitutional law that applies directly in federal courts (including the courts of territories and commonwealths) and indirectly through selective incorporation against the states via the 14th Amendment. | Courts have inherent jurisdiction to reconsider/recall their own decisions. This rarely happens (especially if the decision has already been "sealed" i.e. issued in writing) but still possible. The principle of finality only applies to parties asking courts to reconsider; it does not constrain courts themselves. So, in this example, "the judge agrees to vacate them" but that decision hasn't been sealed yet. The judge can easily just change their mind (although, again, it rarely happens). No double jeopardy applies because it is still the same trial. | I'm not sure there would be any need - or any ability to bring - any civil action. Forgery would appear to count as a Category D felony under Section 205.090 and, "In addition to any other penalty, the court shall order the person to pay restitution.", so person "a"'s damages should have been met under the process of the criminal prosecution of person "b" for forgery, with nothing further to claim. Person "c" will have stolen a car. Whether that car was legitimately owned by person "a" may only be relevant if person "c" is using their belief that it belonged to person "b" as mitigation (for example recovery of a debt - though it won't help much as this should have been done through proper channels), which again would be a criminal proceeding. | Generally (at least in the US), you cannot file criminal charges unless you are a prosecutor. Criminal charges are brought by the state on behalf of society as a whole; the goal of criminal charges is not to help or compensate the victim, it's to punish the offender and benefit society. The victim will often obtain restitution payments, but they are pretty much bolted on to a procedure not focused on compensating the victim. For instance, if the AG decides to drop charges (which they can do at any point), the charges are dropped. Instead of picking one or the other, you can do both. After the criminal case, if you want, you can file in small claims. You can't collect double, but since they have totally different purposes you don't have to do one or the other. | No The charge would more likely be "Unlicensed practice of law" (UPL), possibly in addition to a charge of fraud. Each time that Rose engages in UPL would be a separate offense, and could lead to a fresh trial. This is no more covered by double jeopardy than a serial killer gets a free pass on future killings because s/he was acquitted of one particular murder. The exact definition of UPL varies by state, but making a living as a lawyer without a license is UPL in every US state, I think. For a work of fiction in which UPL is central, see The Rooster Bar by John Grisham. | 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. | The burden for proving claims in civil actions is "preponderance of evidence," i.e., merely that "more than 50% of the evidence favors a conclusion." However, the standard for conviction of any crime is "beyond a reasonable doubt." I.e., if the defense can raise reasonable doubt about one's guilt then the defendant should be acquitted. There is quite a bit of space between the two standards, which is compounded by prosecutorial discretion to even bring criminal charges. | In the specific example you have given, Florida law could not be applied. A state has jurisdiction over a crime under constitutional due process limits on the scope of a state's criminal jurisdiction if the crime is either committed within the state (regardless of where the harm occurs) or is directed at or impacts the state (the classic example is a gunshot fired from the Ohio side of the state line killing someone located in Indiana, which could be prosecuted in either state, or in both states as it doesn't violate double jeopardy to be prosecuted for the same offense by more than one sovereign). Sometimes these issues are framed not as "jurisdictional" per se, but as "conflict of law" questions limited by the constitution. The proof that a crime was committed in the territory where it is applicable is called proof of locus delecti and depends upon the nature of the crime alleged and the location of the act or acts constituting it. To determine where a crime is committed depends on what acts constitute the crime, something that leaves considerable room for flexible interpretation and a careful reading of the exact wording of the relevant criminal statute. The most important limitation on the territorial jurisdiction of a U.S. state is the Sixth Amendment to the United States Constitution. This applies directly in the case of federal criminal prosecutions in the federal courts, and applies in state courts because it is incorporated to apply in state court cases through the due process clause of the Fourteenth Amendment to the Constitution of the United States under 20th century case law applying the "Selective Incorporation doctrine." The Sixth Amendment mandates that criminal trials be conducted “by an impartial jury of the State and district wherein the crime shall have been committed.” If a suspect is not present in a state to be criminally prosecuted, then the options available to a state are (1) to toll the running of the statute of limitations while the suspect is outside the state to the extent permitted by the relevant state statute and the U.S. Constitution, (2) to bring a civil lawsuit against the suspect instead of a criminal prosecution, or (3) to seek extradition of the suspect, which must be granted under certain circumstances under the United State Constitution and reads as follows in the pertinent part: Article IV, Section 2, Clause 2: A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime. (Note that the Sixth Amendment does not apply to civil lawsuits. Civil lawsuit trials can be conducted in a state other than the state where the breach of contract or tort giving rise to the lawsuit took place for jurisdictional purposes and not infrequently is brought in another state, although constitutional choice of law rules limit the circumstances under which a particular state's laws can be applied to a particular set of circumstances in a lawsuit.) The Sixth Amendment, on its face, prohibits Florida from prosecuting a case in the example given in the question involving a crime that was committed solely in Washington State. Of course, the exact definition of the crime might determine where it was committed. In traditional "common law" "blue collar" crimes there is usually no ambiguity over where it is committed except in the most extraordinary circumstances, but in prosecutions of conspiracies and crimes involving economic activity (such as owning or mailing something), the question of where a crime is committed can grow much fuzzier. For example, one could imagine a differently defined crime prohibiting providing funds to finance a purchase of marijuana in excess of 20 grams being committed both in Washington State and Florida at the same time (e.g. perhaps a purchase of marijuana in Washington State was financed by a Florida bank by delivering cash to a courier in Florida who is bound for Washington State knowing that the cash would be used to finance a marijuana purchase). Similar ideas apply in international circumstances where the Sixth Amendment and Extradition Clause do not apply. But, in those cases, the more flexible and less well defined "law of nations" as interpreted by Congress and the U.S. Supreme Court and the President still does impose some territorial boundaries on prosecutions for actions which are not crimes in the country where they are committed under that country's domestic laws. But, those boundaries are not so hard and fast and the idea that a crime is committed in places where it has an impact allow for considerable flexibility in prosecuting crimes committed outside the United States. It has also been well settled since the earliest days of the United States that "The courts of no country execute the penal laws of another." The Antelope, 23 U.S. (10 Wheat.) 66, 123 (U.S. Supreme Court 1825) and that this applies to states applying each other's penal laws as well. So, Florida cannot enforce a violation of the criminal laws of Washington State in its courts either. If you get in a bar fight in Seattle, you can't be prosecute for assault in a court in Orlando, even if both of the parties to the bar fight were Orlando residents and U.S. citizens. Some notable cases resolving the question of whether locus delecti is present in a particular case include the following: In Hyde v. United States, 225 U.S. 347 (1912) although none of the defendants had entered the District of Columbia as part of their conspiracy to defraud the United States, they were convicted because one co-conspirator had committed overt acts in Columbia (225 U.S., at 363). So conspiracy is a continuing offense committed in all the districts where a co-conspirator acts on the agreement. Similarly, In re Palliser, 136 U.S. 257 (1890) the sending of letters from New York to postmasters in Connecticut in an attempt to gain postage on credit, made Connecticut, where the mail he addressed and dispatched was received, an appropriate venue (136 U.S., at 266—268). A typical state statute on the subject from Colorado's Revised Statutes (2016) is as follows: § 18-1-201. State jurisdiction (1) A person is subject to prosecution in this state for an offense which he commits, by his own conduct or that of another for which he is legally accountable, if: (a) The conduct constitutes an offense and is committed either wholly or partly within the state; or (b) The conduct outside the state constitutes an attempt, as defined by this code, to commit an offense within the state; or (c) The conduct outside the state constitutes a conspiracy to commit an offense within the state, and an act in furtherance of the conspiracy occurs in the state; or (d) The conduct within the state constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited under the laws of this state and such other jurisdiction. (2) An offense is committed partly within this state if conduct occurs in this state which is an element of an offense or if the result of conduct in this state is such an element. In homicide, the "result" is either the physical contact which causes death or the death itself; and if the body of a criminal homicide victim is found within the state, the death is presumed to have occurred within the state. (3) Whether an offender is in or outside of the state is immaterial to the commission of an offense based on an omission to perform a duty imposed by the law of this state. Case law under this statute sometimes describes the issue presented under this statute a question of "sovereign jurisdiction." See, e.g., People v. Cullen, 695 P.2d 750 (Colo. App. 1984). |
Is US citizenship confirmation required for constitutional protection I've been watching a lot of 1st Amendment audit videos and I understand that filming in public is guaranteed to any US citizen. I also understand that if no crime is committed, no US citizen cannot be asked to identify himself, or when asked can cite his constitutional right to film in public. The police have no way of lawfully forcing an individual to show an ID. However in order to use your constitutional rights you have to be a US citizen, therefore if someone is quoting their right to film in public should they not prove by providing a passport or birth certificate they are US citizens and therefore under constitutional protection? | Only for certain parts of the constitution, and not for the parts you are asking about. Accordingly, the Supreme Court has squarely stated that neither the First Amendment nor the Fifth Amendment "acknowledges any distinction between citizens and resident aliens."13 For more than a century, the Court has recognized that the Equal Protection Clause is "universal in [its] application, to all persons within the territorial jurisdiction, without regard to differences of ... nationality."14 The Court has repeatedly stated that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."15 When noncitizens, no matter what their status, are tried for crimes, they are entitled to all of the rights that attach to the criminal process, without any distinction based on their nationality.16 Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens? - David Cole, Georgetown University Law Center | Citizens likely have an absolute right to enter the US. This hasn't been addressed directly by the Supreme Court, but here are some cases that come close. The Fifth Circuit, in William Worthy, Jr. v. US, 328 F.2d 386 (5th Cir. 1964): We think it is inherent in the concept of citizenship that the citizen, when absent from the country to which he owes allegiance, has a right to return, again to set foot on its soil. The Supreme Court, in Tuan Anh Nguyen v. INS 533 U.S. 53 (2001) said that conferring citizenship on a person would give "the absolute right to enter [the US]". This wasn't necessary for the holding in this case, which was about whether the person was a citizen, so this could be considered dicta. Fikre v. FBI, 23 F. Supp. 3d 1268 (D. Or. 2014). (not an appellate case) said: U.S. citizen’s right to reenter the United States entails more than simply the right to step over the border after having arrived there. At some point, governmental actions taken to prevent or impede a citizen from reaching the [border] infringe upon the citizen’s right to reenter the United States. Even if we assume that citizens do not have an absolute right to re-entry, the Equal Protection Clause likely bars a religion-based criteria for citizen re-entry. Citizens are protected by the Equal Protection Clause of the 14th Amendment. This prohibits the government discriminating based on a suspect classification (race, religion, national origin) unless such law passes strict scrutiny. Without making a prediction about whether such a hypothetical statute could pass strict scrutiny, I'll go as far as I can and strongly guess that the government could not prohibit citizen re-entry to the United States based solely on their declared religion. | This depends entirely on STATE law, and you need to list the state(s) you are interested in in the question. Thus, the usual legal statement "it depends." POLICE ARE NOT ATTORNEYS Don't accept legal advice from the police at face value. Police frequently don't actually know the minutiae of the law, and/or often misunderstand it. Their job is not to provide legal advice nor legal judgement, their job is to enforce the law based on certain priorities. Thus the area of enforcement is usually narrowed to specific categories so they can be experts in that area. (I.e vice cops, bunko squad, homicide division, etc.) But police are not lawyers, so don't expect them to understand the law. They did not attend 3 years of law school after attaining a college degree, which lawyers DO. Police get as little as 3 months training (in some states like Arkansas they can be put on duty without ANY training for up to a year (!) before attending the academy). THAT SAID, REGARDING CALL RECORDINGS: There are single and two party states. In single party states, any single person who is part of a call or communication can record it. In "two party" states, everyone that is part of the call must be informed. There are numerous exceptions and stipulations however. GREAT EXPECTATIONS First off, is there an "expectation of privacy." Again this varies by state and case law. Generally, if there is no expectation of privacy, then there is a clear exception to record. For instance, if you are in a busy restaurant, and people around you can hear or eavesdrop, you have no expectation of privacy. Courts have also ruled that if you are in the presence of a police officer performing official duties, there is also no expectation of privacy (not for either of you). IS IT LIVE OR IS IT MEMOREX Are you being recorded? If you are in a two/all party state, and you have an expectation of privacy (a phone call made in your home) then one of the following must occur: If the police are recording you without your knowledge, they must have a court order permitting them to do so as part of an investigation. Otherwise you must be notified with a statement at the beginning of the call that the call is being recorded. (Typically your option is to hang up or continue. Continuing the call implies your consent.) In some states the notification can be in the form of a "duck" or a beep every 15 seconds (time period varies, this is also different per state). OPINION NOT ADVICE BELOW I would think that being notified that a call is being recorded ends any expectation of privacy for any involved party. Assuming the state law and related case law supports recording when there is no expectation of privacy, this circumstance would seem to permit recording legally. Doubly so if your were talking to police in official capacity (did you notice a beep every xx seconds?) CAUTION: Because this varies so much by state, and because even the various Federal District Courts are not in unanimous agreement on the minutiae, there may be other factors to consider. | Perjury is a crime in every state, and being a resident of a state is not a requirement for criminality. You can't lie in court just because you don't live in a state of the court. Compelling testimony of an out of state resident will require a court from the person's state. | In the US, there are a number of non-government organizations which take on such cases, such as the ACLU or the Institute for Justice; individual law firms may also take such cases pro bono. There is no automatic right to free representation in case a constitutional issue is alleged, so if IJ doesn't like your case they won't take it. These are private organizations: there is no general government agency that one can call on, other than the Public Defender's office in case you are charged with a crime and can't afford legal defense. (A constitutional issue may arise in a case that a PD might handle, but you can't e.g. call on the public defender to sue the government for infringing your 2nd Amendment rights.) A state attorney general could file suit against the US government over a constitutional issue, as Washington's AG did in the case of the Trump travel executive order, where the underlying issues were constitutional. An individual might inspire a state AG to take on an issue, but the AG would be representing the interests of the state, broadly, and not individual interests. | In general, people have less expectation of privacy in cars than in their homes. To challenge a search and/or seizure under the Fourth Amendment, a person must have standing - the right to sue (that is, you must have had a reasonable expectation of privacy in the place where the search happened; if you didn't, no standing - can't claim your privacy was violated if you had no privacy). The US Circuit Courts are split on the issue of unauthorized rental drivers and whether they have the same reasonable expectation of privacy as the authorized driver of a rental car would have. Some Circuits allow the unauthorized driver to challenge a car search if the authorized driver gave them permission. Some Circuits look only at the agreement and if the driver isn't authorized on that, they're out of luck. The 6th Circuit is more case-by-case, with a presumption that driver can't challenge the search that can be overcome based on the facts. (All this info from US v. Haywood, 324 F.3d 514) There's a current case before the Supreme Court (argued January 9, 2018), Byrd v. US, on this very issue. This SCOTUSblog page has a lot of information on the case. Edited to add: Texas is in the Fifth Circuit, which follows the rule that unauthorized drivers don't have standing to challenge a search/seizure even with the authorized driver's permission to drive the car; unauthorized drivers of rental cars don't have a reasonable expectation of privacy because they lack a possessory interest in the car and/or they're violating the rental agreement. Basically, even though it seems the cops' stop of the car would've violated the Fourth Amendment if he were the authorized driver, since this happened in Texas, he's not going to be able to challenge the stop. IMO, this is incredibly unjust especially when the cops admitted there was no probable cause, so hopefully the Supreme Court makes this rule obsolete and allows unauthorized drivers to exercise their Fourth Amendment rights. Some law review articles on the topic of unauthorized rental drivers: "Hertz and the Fourth Amendment" "Resolving a Three-Way Circuit Split" | Question: Do I need a EU passport or EU ID card to legally work in the EU (or establish that I have the right to work in the EU)? Or is a certificate of citizenship sufficient? Legally, your right to work is not contingent on this and there is no Europe-wide rule that makes holding any document mandatory. Importantly, if you do start working anyway, you are not committing a crime and cannot possibly be banned or forced to leave the country. You do have the right to work from the day you became an EU citizen and if any doubt arises down the line, you should be able to clear it up later. In practice, employers are sometimes supposed to check you are allowed to work (and for that would require some proof of your citizenship) but they don't necessarily need a passport or ID. What's typical on the other hand is that you have to provide an official proof of address (in the countries where you have to register your address with the authorities) and the local social security, insurance, or national tax number. Both of these will require dealing with the authorities and will be considerably more difficult, if not downright impossible, without a national ID card or passport (in fact it can even be difficult with a passport). I worked in multiple EU countries and I don't recall always having to present my ID to employers. I recall at least one instance (in Germany) where I could start working without one (it had just been stolen) and another one (in the Netherlands) where I started on the day after I arrived, without official address nor tax number (BSN). In both cases, I was expected to solve these issues within the first month and you risk a fine if you don't register within a week or two but it was neither illegal nor impossible to start working before all the formalities were completed. None of this means I would be completely comfortable about being months without a passport. But the main issue for you will be entering the country and what your employer's HR department is prepared to tolerate, not any sort of legal obligation to hold a passport to work. Note that in one of the cases I described above I went to the local consulate to get an emergency passport. It wouldn't have been possible back in my country of citizenship but there are some special procedures when you reside abroad. These rules change all the time and depend on your country of citizenship but that could be worth a try. | You're looking for the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. This prohibits the police from harassing you and stopping you without cause. It is not self-enforcing, though, so you can sue for a violation under 42 USC 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. This is the normal means of enforcing your rights under the Fourth Amendment, as well as the First, Second, and so on. |
Why manga sites are not illegal? I mean, they host a lot of illegal content. I do not understand why they are not being taken down. Any idea? | They are copyright violations. They are periodically shut down in waves that shut down the entire genre when the industry decides that they are impacting sales negatively and mount a coordinated campaign. I know of two such crackdowns in the last 25 years or so. I reported on the most recent major crackdown of which I am aware, when it happened in the summer of 2010. An academic journal article on the subject from 2009 entitled "Between fan culture and copyright infringement: manga scanlation" by Hye-Kyung Lee has also looked into the subject and discusses a previous crackdown. There are several other academic journal articles on the subject but my links to them have gone stale. In 2010 and the previous crackdown, publishers had previously done very little international distribution of magna in translation, so this black market arose to address the unmet demand (mostly on a non-profit volunteer basis by devoted fans). But, in 2010, publishers were just starting to greatly increase their investment in paid international distribution of manga in translation, so they needed to clear the field to satisfy their new foreign partners in the international distribution process. The development of profitable business models for natively web based comics and manga, such as the Korean based commercial webtoons website, has reduced demand for copyright violating content in this space somewhat by providing alternative content, as has much greater industry sponsored international distribution of manga in translation through contracted and licensed affiliate companies outside of the publisher's home countries. This doesn't happen more often because the economic gains from doing so are often marginal, it is expensive to mount an enforcement campaign, it is ineffectual to deal with one site at a time (leading to whack-a-mole situations where new sites arise as quickly as old ones are shut down), enforcement campaigns can generate ill will towards the magna publishers among fans, and the pirate sites can generate new revenue that offsets the revenue lost (e.g. boosting sales of merchandise and sales of volumes that haven't yet been translated that fans learn about from the illegal websites). The industry mounts campaigns only when they feel that pirate sites are out of hand and seriously denting their revenues, or when an offender is particularly offensive or profitable. Scanlation sites, in which magna are translated into other languages, particular those that translate manga into languages in which the publisher doesn't have an official translated version, receive particularly lenient treatment from publishers contemplating whether to mount an enforcement campaign, because they don't hurt revenues materially. Scanlations of works into orphan languages are protected under some countries' copyright laws, if a translation has not been done into that language after a certain (short) number of years, but not in the U.S. or E.U. or Japan or Korea or Taiwan, which have some of the biggest markets for manga. | The question as worded implies that if something is a parody it is automatically fair use or allowed in US copyright law. This is a myth. First of all, in a copyright context, the term "parody" is somewhat limited. In that sense, a "parody" is a new work which comments on the original (often but not always by mocking or ridiculing the original). A mere alternate version which modifies the form of the original, perhaps humorously, but not to comment on the original or perhaps on much of anything, is not a parody. A new work which modifies the original to comment on something else, but not on the original, is a satire. Of course many works may be both parodies and satires in this sense. See this law.se Q&A for extensive quotes from Suntrust Bank v. Houghton Mifflin Co 268 F.3d 1257 (The case of The Wind Done Gone vs Gone with the Wind) and discussion of what is and is not a parody in US copyright law, and when a parody is fair use. A parody, because it comments on the original, will often be found to be a fair use of the original. But not always. The full four-factor analysis must still be done, and the results are never certain until a court has passed on the specific case. See this law.se Q&A for more on fair use. I can't tell from the question whether the modified song is truly a parody in the sense used in copyright law. If not, it probably isn't fair use, although it might be for other reasons. By the way, a song written for a television show or video to be distributed commercially is a commercial use, even if a non-profit corporation is involved, and even if there is an educational purpose. Note that fair-use is a strictly US legal concept. Even if something is fair use under US law, it may be copyright infringement under the laws of some other country. | The Apache 2.0 license purports to be irrevocable, but it also presupposes that the supposed licensor has the right to grant permission to copy. In this case, that is untrue, so there never was a proper license and nothing to revoke (the copyright owner grants permission in the form of "a license" which is a legal abstraction, that normally is specified in the license document). An end-user snared by this illegal license might attempt to sue the author because of the legal screw-up but paragraph 9 says that the supposed licensor cannot be held liable. In this case, though, "licensor" is defined not as the person who hands you the license document, but as the copyright owner. So it's the employer who would be not liable under the terms of the document (but since the employer had nothing to do with the license, it's as though the license never existed). The end-user is a secondary infringer (the employee is the primary infringer, in illegally distributing the material). Under US law, that doesn't matter, the user is still liable. Under UK law, secondary infringement includes the element that you have to have reason to know that the copy is infringing, which in the scenario that you describe is not the case. | 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. | Copying is illegal, creating an identical work by coincidence isn't. If it is not a criminal case, then a court decides whether it is more likely that the identical work was created by copying or by coincidence. Creating an identical work through a random process isn't going to happen, claiming this would be an awful defense. On the other hand, it is quite possible that two software developers using very stylized code adhering to struct coding conventions can produce quite large bits of identical code. Your links titled "metadata" and "hash" don't actually link to a description of metadata, or the description of a hash, but to a description of torrent files, which is something totally different. Systematically distributing files whose only purpose is the illegal duplication of copyrighted works should not be done without consulting a lawyer, as has been said on other threads (whether posting links to copyrighted files is legal). The chances that a random process will generate a file identical to an existing copyrighted file of say over 100 bytes are virtually zero. If there is an illegal copy of a copyrighted file, and you claim that you created it through a random process and coincidence, you will lose, and deservedly so. | Generally speaking, it is illegal for you to do this. Copyright gives the creator of the image the exclusive right to copy it, and just making copies to send to other people is probably not going to be fair use. Making copies without a license from the copyright holder would therefore be copyright infringement. Are there likely to be any consequences for doing this? Probably not. | Both the displayed site (including all text and images) and the html, css, javascript and other code that generates the display are protected by copyright. This is true in pretty much every country. You would not be able to reuse them lawfully without permission, unless an exception to copyright applies. If no exception applies, and you have not obtained permission, this is copyright infringement. In most cases copyright infringement is treated as a tort (a civil matter), not as a crime. This means that law enforcement generally will take no action and have no interest in such a situation. The copyright owner could sue for infringement, and possibly collect money damages. In the US, statutory damages can be as high as $30,000, or up to $150,000 for "wilful" infringement, or as low as $750 (per work infringed). Or actual damages can be collected instead. In other countries, actual damages plus costs of suit are more likely, but the rule can be different in each country. The possible exceptions to copyright vary significantly in different countries. In the US the major exception is Fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and I have a question about copyright. What should I read before I ask it? for more information In general short snippets of code can probably be used under fair use, but substantial parts of the code or the displayed site are less likely to qualify as fair use. And if it is illegal then why are there so many legal open source or paid software and applications for cloning of website like httrack, cyotek, webcopy etc? Most of these tools have legitimate uses, including learning how a site is constructed without distributing copied content; and cloning or partial cloning of a site with permission. Even if the tools were mostly used for unlawful copying, that might well not be a high priority for law enforcement, and cross-border law enforcement (which this in many cases would involve) is often much harder for the police and other authorities. | 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. |
Legal Liabilities as a Landlord if Tenants have committed assault? As a landlord, are there liabilities if one of your tenants in one of your owned properties assault, sexually or not, a fellow tenant living in the same property? What about if there is assault by a tenant on your property against someone that isn't your tenant? Are there connected repercussions as the landlord of the victim or assaulter? Edit to provide more detail: If say the landlord is seeking a new tenant, and after adequate background checks, the new tenant is welcomed and joins an existing tenant in the property. However, assume at some point during the contract, the new tenant comes back to the property intoxicated, and assaults the existing tenant on the landlord's property. Is the landlord liable, or is the victim tenant able to sue the landlord, given that the property itself did not play a role in the crime, and that the landlord did not have reasonable grounds to believe the new tenant had tendencies to commit assault as background checks were done? Since it is a completely behavioral act on the incoming tenant's part, surely the landlord is not responsible? | The landlord is not free of liability risks. In California, everybody is responsible for injury brought about by lack of ordinary care or skill in management of his or her property or person. This applies to landlords, falling under Business Proprietor’s Liability for the Criminal Conduct of Others. Therefore the landlord must use reasonable care to protect tenants and guests from another person's harmful conduct on the property if the conduct can be can reasonably anticipated. The duty is towards anyone on tenants and guests alike. To figure out whether the landlord has breached his duty of care, the courts will "balance" the probability of harm to the tenant with the burden of the duty imposed on the landlord to prevent or mitigate the risk of harm, see Vasquez v. Residential Investments, Inc., 118 Cal. App. 4th 269. In that instance, the landlord failed to replace a missing pane of glass on the front door, contributing to the tenant's murder, for which the landlord was held liable (wrongful death). This ruling has extensive discussion of that balancing act. The crucial question is, how did the assault happen, and how do the landlords actions relate to the assault? The answer may be different in other jurisdictions. In the modified scenario, liability would hinge on scenario details (I'll continue to assume California). The factual question is whether in light of the background check, the assault was foreseeable, and to what extent it was preventable – what did the landlord do wrong? For instance, if the criminal history check revealed a number of arrests for assault in the state and the check was limited to CA (the new tenant moved to CA just a year ago), and if the assault was in old-tenant's room which had no lock due to landlord indifference, then the landlord is more likely to be held liable (he could have fixed the lock for a few dollars, or paid for a better criminal check). On the other hand, if a thorough criminal check reveals no arrests or complaints for anything, anywhere, and the assault happened in the common area while talking politics, there is no reasonable course of action that the landlord could have undertaken to prevent the assault (hiring 24 hour guards would not be reasonable, in this scenario). In Vasquez, the issue came down to the landlord's failure to implement a cheap fix on the front door. In a third version of your scenario, suppose that there was some evidence of past violent behavior, but the only fault that could be assigned to the landlord is the fact of renting to the new tenant. Does a landlord have a duty to deny housing to a person with a past record of violent behavior? It is legal in California to do background checks and deny a prospective tenant a lease based on existing criminal history, as long as the criteria are applied consistently (not discriminatorily), and not in a jurisdiction where criminal checks are illegal (Oakland). There is a non-fantasy scenario where that includes "the US", given a guidance from HUD, based on a disparate impact analysis. HUD says that a housing provider excluding applicants with arrest but no conviction "cannot satisfy its burden of showing that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest". If there are convictions and there is a blanket no-convict policy, the provider must still be able to prove that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. A housing provider that imposes a blanket prohibition on any personw ith any conviction record –no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden If it is illegal to discriminate on the basis of past convictions, a landlord cannot be held liable for obeying the law. In short, "it depends (on minute details and whether the plaintiff's lawyer makes the necessary arguments): ask your attorney". | I am an Ontario-licensed lawyer. The following is a general information about the law and not specific legal advice. You are not my client and I have not given you advice related to your circumstances. First, even when you ask a generic question, define the jurisdiction of interest. For the purpose of your question, Canada is a collection of different jurisdictions with different rules. My answer relates to Ontario, Canada. Other Canadian jurisdictions have different rules. The Law The applicable Section 109 of Ontario's Residential Tenancies Act http://canlii.ca/t/33p is reproduced below for your convenience. EMPHASES MINE. Receipt for payment 109 (1) A landlord shall provide FREE OF CHARGE to a tenant or former tenant, on request, a receipt for the payment of any rent, rent deposit, arrears of rent or any other amount paid to the landlord. 2006, c. 17, s. 109 (1). Former tenant (2) Subsection (1) applies to a request by a FORMER TENANT only if the request is made within 12 months after the tenancy terminated. 2006, c. 17, s. 109 (2). Regulation Ontario Regulation 516/06 http://canlii.ca/t/sjx dictates minimal form: Receipt A document constitutes a receipt for the purposes of section 109 of the Act if it includes, at a minimum, (a) the address of the rental unit to which the receipt applies; (b) the name of the tenants to whom the receipt applies; (c) the amount and date for each payment received for any rent, rent deposit, arrears of rent, or any other amount paid to the landlord and shall specify what the payment was for; (d) the name of the landlord of the rental unit; and (e) the signature of the landlord or the landlord’s authorized agent. O. Reg. 516/06, s. 9. Landlord Compliance A good landlord will provide receipts immediately upon payment, and keep a copy. An very good landlord will provide additionally a summary of payments for the year, in tabulated form, and keep a copy of the yearly receipt instead of the multiple receipts for each payment. An excellent landlord will keep the tabulated information in a computer system and will issue a receipt for the whole tenancy period on termination. Keep a copy. Tenant's Application If your Ontario landlord refuse to comply with the above, file a T2 http://www.sjto.gov.on.ca/documents/ltb/Tenant%20Applications%20&%20Instructions/T2.pdf *A T2 can also be filed online. Remember to ask for cost http://www.sjto.gov.on.ca/documents/ltb/Interpretation%20Guidelines/03%20-%20Costs.html | As someone who acts for both landlords and tenants I would say that I have never seen exclusions for personal injury or death in a commercial lease. I would recommend that you have the whole lease reviewed by a solicitor dealing in commercial property, particularly as, as has been stated in another reply, exclusion of liability for personal injury or death is prohibited by UCTA. This would suggest there may be other provisions which, if not prohibited, are unreasonable and you should be aware of the commitments you are taking on prior to signing This pure speculation, but the fact that those clauses would not be in a standard lease precedent does make me wonder if the landlord has done a DIY job and produced a lease from the internet suitable for another jurisdiction. | What crimes have been committed? The initial assault (hit) or theft (stole) by A. Bribery by A and the detective. Which parties are at fault or liable? See above. How could Party A sue faulty party or parties for described actions. Party A, as the perpetrator, can't sue anyone. Party B can sue party A for the assault or the theft as applicable. They have no cause of action on the bribery. The state can prosecute A for assault or theft and bribery. The state can prosecute the detective for bribery. | No they can't. The lease says the premises need to be cleaned without going into details how. You cleaned them yourself before moving out. If the landlord was not happy with that, they should have raised their concerns and discussed options. The security deposit that the landlord holds is only supposed to be used when something goes wrong. When something goes wrong, the landlord is supposed to talk, not to silently chop off a slice of the deposit as they please (unless the lease allows it, which it does not here). If the landlord refuses to refund, read the manual and go to small claims court to tell them where to get off. | There are nuisance lawsuits and constructive eviction arguments--you can check with your local attorneys and perhaps tenants' rights organizations for detailed information. Just because marijuana is legal under state law (if certain steps were followed) does not mean that your landlord or another tenant can interfere with your use and enjoyment of your home. Civil consequences--such as a court order to the smoker to stop smoking, money damages, or a partial abatement of your rent until the smoking stops--may be achievable. It is important to follow the rules for your jurisdiction closely when starting a legal action, so you should talk to an expert in your jurisdiction if you want to pursue legal action. But where possible, most people deal with this kind of thing by moving. | 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. | 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. |
Why is attempted murder punished more harshly than murder? https://www.shouselaw.com/nevada/attempted-murder.html#2 Attempt murder as a category B felony carries two to twenty (2 - 20) years in state prison. The judge will impose an additional one to twenty (1 - 20) years if either: the defendant used a deadly weapon, or the victim was age 60 or older That's 40 years. https://www.shouselaw.com/nevada/murder.html#4 Death penalty (only if there are aggravating circumstances that outweigh any mitigating circumstances), or Life in prison without the possibility of parole, or Life in prison with the possibility of parole after 20 years, or 50 years in prison with the possibility of parole after 20 years That's 20 years unless you get life (which only about half do). Why is attempted murder More likely to get 40 years? I think it's because the attempted murder victim would be around to annoy the police therefore the sentence must be longer. | Murder carries certain penalties, and attempted murder is distinguished from murder only with respect to penalty. Without the circumstances allowing execution, the punishments are life without parole, life with possible parole after 20 years, or a definite term of 50 years with possible parole after 20. There are separate "enhancements" for crimes against elders or use of a deadly weapon, and if these circumstances exist, they are applicable to both murder and attempted murder. In all cases of enhancements, the enhancement cannot exceed the penalty for the crime (also, it runs consecutively). The punishment for attempted murder is not the same as the punishment for murder: since murder is a class A felony, attempted murder is defined as a class B felony, which has a penalty between 2 and 20 years. Compare that to actual murder which carries a minimum sentence of 50 years. In no case can a person committing actual murder serve less time than a person attempting murder, even with "enhancements". | You don't specify a jurisdiction but taking the US as an example, yes you could be charged with 2nd Degree Murder - you intended to harm them but not specifically to kill them: A second situation that constitutes second-degree murder is where the perpetrator intends only to cause serious bodily harm but knows that death could result from the act. For example, in the situation above, instead of shooting Bill, Adam grabs a shovel and whacks Bill in the head with all his strength. While Adam didn't specifically intend to kill Bill when he hit him, he did intend to strike him with the shovel knowing that such a blow to the head carried with it a distinct possibility of death. Adam killing Bill in this way would be classified as murder in the second degree. In English law you'd be facing charges for Voluntary Manslaughter | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | Yes For example, s270AB of the south-australia Criminal Law Consolidation Act 1935 says: (1) Where— (a) a person attempts to kill another or is a party to an attempt to kill another; and (b) he would, if the attempt had been successfully carried to completion, have been guilty of manslaughter rather than murder, he shall be guilty of attempted manslaughter. Relevantly in SA, voluntary manslaughter occurs when a victim dies as the result of an offence that would otherwise amount to murder, but the defendant’s liability is reduced because of the presence of mitigating circumstances, such as provocation. So, in circumstances of provocation (say) where the accused shoots at the victim but misses, attempted manslaughter is a possible charge. Most likely this would be charged as attempted murder but downgraded where the defence of provocation was made out. | germany Someone inciting someone to commit a crime is to be punished as if he committed the crime himself in addition to the actual perpetrator. §26 StGB Murder is punished by lifelong imprisonment. §211 StGB The attempt of a crime is punishable by the same punishment as the execution of it, or with a reduced sentence. §23 StGB You can agree to your body being harmed by someone (like in a martial arts tourney), but that doesn't make it legal if the harming of the body is against "Gute Sitten" (~morals) §228 StGB This includes (attempted) murder. Conclusion Hiring a hitman is punished by lifelong imprisonment for inciting someone to attempt/commit the crime of murder. Failure in murdering someone makes it an attempt. If your incitement of the (attempted) murder can be proven, it doesn't matter if the hitman never tried to execute the murder or grossly failed - Or even if you failed to hire the hitman: The attempt of inciting someone to murder you is punished as if you had murdered someone. | The closest case to this is Brady v. United States 397 U.S. 742 (1970): We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In Brady' case, there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty. In Brady, had he not entered a guilty plea, he would have been risking the death penalty. The court recognized: It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty, and thus limit the penalty to life imprisonment, rather than to elect a jury trial which could result in a death penalty. They upheld the plea: Although Brady's plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made, and we have no reason to doubt that his solemn admission of guilt was truthful. So, even in the case where the risk of a death penalty may have motivated a guilty plea, the plea has been upheld. All of the above is with respect to actions of the prosecution. In any case, the main test is whether the defendant entered a plea voluntarily and intelligently. | 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. | Yes Now, murder needs a definition because they are all subtly different. Let’s use the one in the new-south-wales Crimes Act 1900: Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. The only real difficulty is in the phrase “causing the death charged”. So a sensible prosecutor would charge both defendants with both deaths. A jury would find them guilty beyond reasonable doubt of one of the “death[s] charged”. The case is similar to Rogerson and McNamara who took a live Jamie Gao into a storeroom and came out with a body. Each accused the other of the murder - the jury didn’t believe either of them. |
Pay a company to refuse business with a specific individual? Can I pay an apartment complex to refuse business with a specific individual? Or more generally, can I pay any company to refuse business with any specific individual? I believe that this would be illegal, but I don't know what laws it would break. Would it be discriminatory, bribery or other? | Certainly, "Tortious interference" comes to mind. While it's a difficult one to prove, there are typically 6 elements: The existence of a contractual relationship or beneficial business relationship between two parties (possible problem here). Knowledge of that relationship by a third party. Intent of the third party to induce a party to the relationship to breach the relationship. (or refuse to enter one). Lack of any privilege on the part of the third party to induce such a breach. (no right to do so via some other aspect of law). The contractual relationship is breached. (the normally-accessible-to-anyone transaction is prevented). Damage to the party against whom the breach occurs The only real "stretch" here is that Tortious Interference is written for cases where you already have an existing business relationship or contract in place. You're talking about a situation where a vendor normally proffers its service to any member of the public, and you'd argue there's an implied contract that they do business with any comer. In real estate particularly, it gets a lot more complicated because of Fair Housing laws. The apartment could get in big trouble being caught refusing to do business with someone, if the reason for the refusal was sourced in something related to race, creed, religion, sexual orientation and a bunch of other no-no's. Even if that's not your motive, if they (plural: victim and attorney) can convince a judge or jury that it is your motive, you and the apartment could owe them a lot of money. Fun fact: conspiracy to commit a Federal crime is a felony, even if the crime isn't. Regardless... I think if you are paying the vendor to snub the customer, courts would find that to be a perverse and unjustifiable behavior, and would see harm in that, especially if it was part of a pattern of behavior that constituted harassment. They would tend to assume the worst motives unless you could show other motives. I suspect they could even get a restraining order blocking you from interfering in their business relationships anywhere. You would also be subject to discovery, and would be compelled to disclose anywhere else you interfered, and pretty much anything they want to ask you. You can't refuse to answer ... unless ... your answer would incriminate you of a crime. But that's the kiss of death in a civil trial, because the jury hears that, and infers you are a crook. Game over lol. | we would like to know whether we have sufficient legal grounds to sever/terminate/exit this contract with Superior Management Co.*, if the company does not mutually agree to do so. No. In that event the HOA is stuck with the contract at least for the remaining part of the current period. The HOA's concern that the provider could breach the contract by significantly underperforming seems speculative and does not entitle the HOA to breach it first. Changes in the name and/or ownership of a party does not alter the parties' rights and obligations pursuant to the contract. This implies that neither party is entitled to disavow his obligations by terminating the contract altogether. For early & unilateral termination to be an option, it would have to be provided in the terms of the contract itself. | It is legal for a company to ask for any information they want as a condition of doing business with you, so long as their request isn't proscribed by law. I don't know of any jurisdiction where a request for banking or credit information is illegal. (In this case, however, it does seem like you are being phished. You could report the matter to your country's consumer protection agency.) | It’s not a problem Is there any reasonable prospect that you or the landlord would argue in a dispute that you are not the tenant? No. Is there any reasonable prospect on all the available evidence that such an argument would succeed? No. Therefore, no problem. Where this can be a problem is if someone commences legal action in the wrong name (e.g. the landlord sues “Travis Parks” instead of “Parks Travis”] and there is a summary judgement (if there is a hearing the mistake will be sorted out). A judgement cannot be enforced except on the named person. It can also be a problem if the lease is in the name of a company. Because companies are ‘virtual’ people, they can only act through agents and their name (and number in some jurisdictions) is the only thing that identifies them. | You ask permission, preferably with legal counsel to handle the details. It really is that simple. Unsurprisingly, most companies don't want to give their code away- especially to a competitor. If you even get a response, they will expect something in return i.e. money. Realistically though, it's unlikely they will respond, much less deal with you. | I assume that you arranged a contract with some company which paid the contractor the full amount, and not you have to pay that company. If you stop paying the finance company, they will initiate legal proceedings against you to make good on your obligation, and that won't affect what the contractor does. It might not hurt you to write a formal letter (no phone calls) to the contractor stating that you require them to complete the job by some date certain, and hope that you won't have to take the matter to court. If you decide to write the letter yourself, you want to avoid saying anything that could be held against your interest, for example "I don't care how crappy a job you do, I just want this job done!": you need to be sure that what you say in a letter does not put you at a legal disadvantage. The best way to guarantee that is to hire an attorney to write the letter. If you want your money back (plus interest), you will almost certainly need to hire an attorney to write the letter. It is possible that there is an arbitration clause in your contract, requiring you to settle disputes with the firm Dewey, Cheatham & Howe. In that case, your attorney might not be able to do much for you. There cannot be a clause in a contract that penalizes you simply for hiring an attorney. | 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. | In the US, people are generally allowed to charge arbitrary amounts for services, as long as they do not violate various anti-discrimination laws in doing for. For example it would be illegal to charge people of one race less than they charge people of another race, because of federal and state anti-discrimination laws. Three primary factors govern the legality of a particular form of discrimination. One is the type of interaction, for example "voting rights", "public accommodation", "employment", "housing" – medical treatment would generally fall under "public accommodation". The second is jurisdiction – there can be federal, state, and municipal laws governing a particular kind of discrimination (the lower in the hierarchy you go, the stricter the laws tend to be). Finally there is the "protected class", that is, the basis for discrimination. Protected class is extremely variable, given the preceding two factors. Age discrimination is legal in ways that race discrimination is not. "Has insurance" is not a protected class anywhere, so this does not violate any discrimination laws (per se). There are numerous legal forms of discrimination which are analogous, for example to shop at Costco at all, you have to be a member; there are numerous businesses that offer "member discounts"; some doctors work on a "subscription" basis where they don't treat you unless you are a (paid) service subscriber. The idea that a service has to treat all comers identically is legally incorrect. Co-pay rates are dictated by insurance companies, and can vary depending on the specific insurance carrier that you have. To the extent that there are no specific laws saying otherwise, a service provider is legally entitled to charge less to a person who does not make a claims for coverage by medical insurance – or they could charge more. Indeed, the "without insurance" cost of medical services is typically higher, and the insurance company insists on doctors accepting lower compensation. A "practical" but somewhat risky solution is that if you know that the copay is higher than the street price, you can simply not reveal that you have insurance. However, sometimes an office visit results in a finding that some treatment is needed, and the street price for that treatment may be substantially higher than the insured price. At any rate, contractually-determined co-pays are legal. I should mention a remote possibility for applying anti-discrimination laws, owing to sec. 1557 of ACA. See this article on health care discrimination litigation, where the law enabled "private right of action for disparate impact claims opens the door to class-based claims challenging facially neutral health care policies, treatment decisions, and insurance coverage on the basis that they disproportionately affect members of protected classes". Under this regime, if a policy effectively discriminates on the basis of a protected class, without explicitly mentioning the class, the policy could still be found illegal. If there is a strong enough correlation between race and having health insurance, then "having health insurance" could be found to be a substitute for discrimination on prohibited grounds. There isn't enough case law on this issue, that we can clearly say that such an argument would or would not work. |
Personal risk in assuming Power of Attorney Florida, United States: Following my father's passing I am being asked to take on Power of Attorney for my mother whose cognitive function is in decline. This is something I really don't want to do, because for one I live on the other side of the country and second my relationship with my parents was not a particularly loving one. But, in any case, what came of the chaos after my father's passing was me performing many of the tasks that having POA would entail anyway: managing her affairs & finances, etc out of simple necessity and because she wants me to. I am worried as to what kind of personal exposure to risk agreeing to legally being POA would carry and what happens if I simply decline. That is, if my mom is sued by somebody for some reason, does that mean I am being sued, and my personal assets are at risk, rather than just hers'? And, what if she runs out of money, would I be personally financially liable for covering her expenses? I mean I would help of course but I am not a man of means and I couldn't possibly cover her costs without cashing out my own retirement savings and I don't want to jeopardize my own livelihood. And then, what if I simply don't have time to deal with her affairs, that is where I am being put in a position where I have to choose between keeping my job and my personal relationships at home versus going to deal with things over there, would having POA force me to do the latter? Thank you | That is, if my mom is sued by somebody for some reason, does that mean I am being sued, and my personal assets are at risk, rather than just hers'? Having power of attorney doesn't mean that you become "one and the same" person, it just means that you can stand in their place legally. If somebody sues your mother, you are authorized to act on your mother's behalf, but that doesn't mean that you are liable for any judgement. Of course there is a fiduciary responsibility to act in your mothers best interest, and violating that can open you up to suits that you are responsible for (because the suit would be against you, not your mother). And, what if she runs out of money, would I be personally financially liable for covering her expenses? No, you wouldn't be. Debts would be settled the same way as if she didn't have anybody acting as PoA. She (you) could declare bankruptcy on her behalf and have the debts discharged. This doesn't obligate you to pay them. And then, what if I simply don't have time to deal with her affairs, that is where I am being put in a position where I have to choose between keeping my job and my personal relationships at home versus going to deal with things over there, would having POA force me to do the latter? This is a personal decision for you. You could alternatively pursue having her declared as an "adult ward of the State". You need to consult a lawyer if you take on full power of attorney, to both protect you, your assets, and your responsibilities. This is something that you really need a lawyer to draft so that the lines are clear, and the expectations are as well. You may need to get a court involved if she is not of clear mind to sign these papers. | The rules for a Texas power of attorney are summarized in this page from Texas Lawhelp. The actual law is 2005 Texas Probate Code CHAPTER XII. DURABLE POWER OF ATTORNEY ACT Both of these indicate that the agent (aka attorney-in-fact) must be specifically named in the POA document. My experience with a POA in a similar situation in NJ is that multiple agents may be named, or backups in case the primary agent dies or is not available. However the Texas pages do not specifically say that. But in any case the agent or agents must be named in the POA signed by the principal, who must be of sound mind at the time the POA is signed. An agent does not have the power to name a replacement or backup agent. An Agent might be able to give a POA to another person to act in the agent's place, but that POA would lapse if the agent died, and the law does not specifically permit this, so it might not be valid in any case. A Texas court can appoint a Guardian for an incompetent person, and such an appointment takes precedence over an existing POA. That would be a way to deal with the situation if there is reason to think the agent might die or become unavailable while the principal is mentally incapable. | The simplest solution is to hire an attorney to do this for you. If you want to do it the hard way, you need to try to figure out why your motions were denied. For example, did you file proper motions, or did you just write on a piece of paper "I need all of Walmart's records"? Why do you think that a court will / should supply you with an Open Record (of what)? A real lawsuit is not like Judge Judy where you tell your story and hope the judge has sympathy on your plight. Did the judge say / write anything about why he is denying your requests? | Off the top of my head, unless there's a provision that says otherwise, no, they cannot do that. Obviously, I can't tell you if there's a provision that says otherwise. Consult a lawyer for more specific advice. | IANAL. I am not your lawyer. The following is not legal advice. The insurance company, regardless of how you feel about their process, has it appears, to have discharged their duties, namely they have paid out two separate claims. The personal property claim has been paid to the estate as the beneficiary, while the property claim has been paid out with the mortgage company as the beneficiary. The mortgage company seems, to me (disclaimer, I work at a financial institution, albeit in an IT role), to also be reasonable. Six months is an extremely long time without contact or payment (where I work, the loss mitigation department is sent all loans that are 3 months delinquent); the fact that you, the estate executor were not aware of the passing of the debtor is of no consequence. Also, many loans contain clauses that allow the lender to accelerate the loan (i.e. demand "immediate" payment of the whole outstanding balance). So they've started foreclosure proceedings, probably about 3 months ago. As for the foreclosure proceedings: The received $45,000 will be applied to the loan. The property (not just the house, but the entire lot) will be sold at public auction, as all foreclosed houses are in the state of New York. Proceeds from the sale of the house shall be applied to paying off the loan. If the proceeds exceed the outstanding mortgage amount, the estate will be sent the remaining proceeds. If the proceeds are less than the remaining amount, the estate is retains (i.e. owes) the remaining debt. EDIT: As an example of why the noting of jurisdiction is important on this stack-exchange, Nate Eldredge has informed me that in New York, it is possible for a judge to reduce the "remaining debt" of the estate by declaring that the sold house had a higher "fair market value" than it sold for. | I am going to convert a set of comments into an answer. Please note, IANAL, especially in your jurisdiction. You are asking the wrong question. The Court is not specifically ordering your father to make more money; it is ordering him to support his ex-wife (XW) at a level similar to what she enjoyed during the 20-year marriage. This is not outlandish. In fact, it would be typical of a divorce in the old days, when the mother (1) was likely to have custody of any minor children and (2) was likely to have not worked outside the home, at least, not in a high-skill job. It's less typical today, since these conditions are less common now. He can do this by continuing to work to make more money, or by giving her most of his pension, or by selling off his land, etc. How is his issue. However, your father is making no attempt to improve his situation, and as I will discuss below, this doesn't seem unprecedented. Even though XW has hired an attorney, he has not, using the excuse it is too expensive—while the XW’s capable attorney takes him to the cleaners. Penny wise pound foolish. This is a serious error. He has not entered into a formal custody arrangement. XW could appear at any time demanding at least half-time custody, for whatever reason. This is a serious error. He has taken on unofficial sole custody of the minor child (your half-sister, I suppose), without asking for child support, even though this would substantially offset the alimony to XW. He could probably get this even before the full court hearing, although, again, IANAL, and he needs a local lawyer to handle such a petition. This is a very serious error. He allowed XW to present what you feel is an unrealistic picture of his income based on his second job. Now, depending on your father's age, maybe lowering the standard of living and retiring on a pension is unrealistic. But did your father make any attempt to show that XW had worked before or during the marriage or had marketable skills? At least in some jurisdictions, alimony would be reduced by what the Court feels XW should contribute to her own upkeep. Since she isn't taking care of children, she can't use them as an excuse to stay home. This is a serious error. He could also explain that since he was now in charge of the minor child, it was unfair to ask him to work far from home (more common with the sexes reversed, but not unheard of). Did he introduce a more complete income history showing that the second job was recent, intended to be temporary, away from home, and he detested it? Or did he just let XW bring in her version, unopposed? A lawyer would have introduced this argument if it is valid where you live. This is a serious error, that must be remedied before the final hearing. My first thought was that your father is still in shock from XW leaving him and petitioning for divorce, but on re-reading your description of why he took the second job, frankly, he seems to arrange his life to get pushed around and then whine about it. You need not indulge this. Tell him to get a divorce lawyer, not go around looking for someone to sympathize over the bad deal he got after "saving" money representing himself. | Are you in the United States? If so, you're an adult and therefore legally free to move out of your parents' home and to enter into contracts. As a legal matter, you don't really need to do much at all beyond turn 18 to be permitted to sign a lease. There are of course all manner of practical impediments to finding a place to live (perhaps you have inadequate income, credit, or references), but none that should be insurmountable. EDIT: You've indicated in the comments that you may be under a guardianship, but you seem to be indicating that you doubt whether this is true. If you are under a guardianship, your rights are likely to be quite different than under usual circumstances. It seems quite unlikely to me that an adult who has the mental capacity to come asking these questions could be under a guardianship without knowing about it. Given that your parents are the purported guardians, I don't know how you could have been placed under their guardianship without appearing in court sometime around your 18th birthday, which I assume you'd remember. You should determine whether you are under a guardianship. You can probably do this by searching the court records online for each county you've lived in. Alternatively, you could contact adult protective services or an equivalent agency. | Between your mother and you the bank does not care where the payments come from. If they do not get them, they can sue you, or your mother or (most likely) both of you and they will chase whichever of you has the most money and ultimately repossess the house to satisfy the debt. What matters between you is the contract or deed that you signed with your mother where you documented that you would each pay half of the mortgage. Unfortunately, agreements between family members are presumed not to be contracts. That is, the courts will not get involved to decide how much each of you owe - you have to sort that out for yourselves. A signed agreement will usually overcome that presumption. Other evidence may overcome the presumption - for example, evidence that you split the payments 50/50 for some period of time. Talk to your mother. And a lawyer. |
How is judge selected for a case in the US? In U.S. federal district courts, how is the judge chosen to handle a particular case? Are judges randomly assigned to cases? Or are they chosen based on their expertise in certain areas of law? | The exact procedure varies from one district to the next, but generally speaking, it is essentially by lottery. The procedure is typically spelled out in the court's local rules. Jump to page 105 of SDNY's local rules for an example. The lottery system is not entirely random, though. Frequently it is weighted to make it more likely that a case is assigned to a judge from the district's courthouse nearest to the parties, or to make it less likely to be assigned to the chief judge or a judge on senior status. There are then various other rules governing assignments of cases to new judges or visiting judges, but those typically don't happen when a case is originally filed. | In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures. | 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. | A judge can only impose sentences as prescribed by law. Suppose, as a random example, that a person is convicted in federal court of fraudulently mutilating coins, in violation of 18 USC 331. That section of the statute states the punishment for such a violation: ...Shall be fined under this title or imprisoned not more than five years, or both. The scale of fines is to be found at 18 USC 3571; for this crime, which is a felony, the maximum fine would be $250,000 (with certain exceptions, which let us suppose do not apply here). So in principle, the judge may sentence the offender to any of the following: Five years in prison and a fine of $250,000 Five years in prison and no fine Three days in prison and a fine of $6.25 No prison and a fine of $5000 You get the idea. (In practice, the judge is likely to follow official sentencing guidelines, but is not legally required to do so.) But the judge may not sentence the offender to any of the following, because the statute does not authorize it: Death A fine of $250,000.01 Five years and one day in prison Wearing a silly hat for a week Slavery I do not know of any federal criminal statute authorizing slavery as a punishment for any crime, so therefore, a federal judge cannot impose this sentence. Congress could in principle create such a law, and if they did it would not violate the Thirteenth Amendment, but they have not done so. (The Eighth Amendment might be a separate question, as slavery might very well be considered a cruel and unusual punishment by today's courts. And as you point out, such a law might also be in violation of treaty obligations.) (I assume here that "slavery" is understood to be something distinct from "imprisonment", although I know some would disagree.) | This is a non-justiciable political question. See Nixon v. United States, 506 U.S. 224 (1993) (a case involving a federal judge with the surname Nixon, not the U.S. President who resigned on August 8, 1974; Nixon at the time of his conviction and removal from office was a federal district court judge in Mississippi). In other words, it means whatever the U.S. House of Representatives, in voting on the impeachment, and the U.S. Senate, in trying the impeachment, decides it means. But, since U.S. Senate trials of Presidential impeachments must be presided over by the Chief Justice of the United States (see U.S. Constitution, Article I, § 3, clause 6), so that particular judge's opinion regarding what it means may have some influence on the proceedings. The procedures aspects of an impeachment set out in that clause states that: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. | The difficult part is deciding when two cases are similar. Precedents from higher courts govern what the law is in a case. But, a lot of what trial court judges do is to boil down a mountain of evidence to determine authoritatively what facts actually transpired before applying the law to those facts. This involves immense amounts of discretion and judgment. Also, while in some cases the law provides very clear guidance to a judge about what to do, in other cases, the law is vague enough that two different judges can reach two different verdicts, both of which are legally correct, on the same set of facts. For example, in a divorce case (involving made up facts and law to illustrate the idea), suppose that the two main assets of the family are a house and retirement account of equal value and that the facts as applied to the relevant law say that the value of the assets must be divided equally between the husband and wife. One judge could award the house to the husband and the retirement account to the wife, while another judge could award the retirement account to the husband and the house to the wife. But both judges would have complied perfectly with the law. Similarly, in a divorce there are a variety of different custody plans for children that could all conform to the law and different judges could choose different plans and each be correct. As another example, suppose that a bulldozer destroys a house and the person whose house is destroyed sues for money damages. The judge is presented with two different appraisals from equally qualified appraisers for the value of the house, both of whom superficially at least, are using proper appraisal methods. But one appraiser says the house was worth 1,000,000 and another says that the house was worth 1,500,000. Realistically, any verdict the judge renders between 1,000,000 and 1,500,000 could be upheld as legally correct. Because the process of turning evidence into legal verdicts involves so much discretion and so many judgment calls, and because it is rare that two cases are factually identical, the goal of giving similar verdicts for similar cases, is difficult to achieve and difficult even to evaluate in real life. It is almost certain that similar cases often result in dissimilar verdicts, and not infrequently the reasons for this (like using personal ideologies as opposed to what the law demands to resolve close cases) are not good ones. But deciding how common that is, or in what kinds of cases it is most troubling that this happens, is very hard to determine. | 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. | 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. |
Is a text message legally binding? I was interested in purchasing a puppy from my job. I told my manager(A) that I didn’t have the money out right to afford it because of the whole corona situation, but the future puppies that I would sell and my paychecks will go fully to the dog till he’s paid off. She said "of course, absolutely", and that whatever I don’t get financed for we can do in-house payments. I had to ask my other manager(B) to help me with financing, who then said that I need to put a down payment of $2000, which that wasn't the agreement with manager A. So I went to manager A and told her that that’s not the agreement we had, and I went into contacts on how the manager that told me it was $2000 failed to trai. me in certain positions in my job and she took some of my commission and the manager that made the agreement with me. | 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. | In principle, a verbal contract is just as binding as a written contract. The catch is that it can be difficult to prove what was said. Unless you have witnesses, it would just be your word against his. As DStanley says in the comments, if you have proof that you paid half -- canceled checks or receipts or whatever -- that would be evidence that there was some sort of agreement. Whether your daughter is allowed to drive the car on a specific day depends not just on who owns the car but who has legal custody of your daughter. If a friend of hers said that it is okay with him for her to drive his car to a wild party where there will be drugs and an orgy, the fact that he has full title to the car does not mean that her parents have no right to tell her she can't go! You didn't say what the custody arrangements are, but if you have full custody or shared custody, this would give you certain rights to tell her what she is and is not allowed to do. | Acme is bound by Bob's actions so long as they were conducted with "apparent authority" from the perspective of Client C and involved his work duties, even if he carried them out contrary to company policy - unless Client C knew for a fact that Bob was violating company policy and didn't have authority within the company to do so when he was doing these things. Acme, directly, or Acme's insurance carrier, in a subrogation suit after it has settled the claim from Client C, could probably sue Bob, especially if he willfully violated company policy for the purpose of harming client C. This is rarely done, but ultimately Bob owes duties to Acme which he violated which probably give rise to liability, although proving that and collecting the judgment would both be difficult. If Bob had authority within the organization to deviate from company policy, however, which he would have a good cause to claim that he did, this would be a full defense to such a suit, since Bob was always acting as a disclosed agent of Acme. Client C probably cannot sue Bob directly, whether or not it sues Acme. In contract matters (which this would include) a disclosed agent is not responsible for the acts he carries out on behalf of his principal. For example, an employee who signs a promissory note on behalf of a company in an official capacity as a disclosed agent of the company isn't responsible for paying the note. This is different than the rule in tort cases where the principal and anyone whose actions personally caused the tort caused the problem is liable. For example, if the employee got into a car accident that was his fault while he was driving on the job for the company, both the company and the employee would be liable to the person who was hurt. The circumstances that you describe sound more like a breach of contract than they do like a tort, so Bob would probably not have any personal liability to Client C. Could Bob or Acme (or both) face any criminal liability? Unless Bob was the CEO or other senior officer of the company, Acme wouldn't face criminal liability, because he is too far down the chain of command to cause Acme the entity to have the requisite criminal intent. Realistically, failing to "verify that equipment rental invoices match delivery records before notifying the client to approve the invoices for payment" does not amount to a crime no matter who does it. This might be careless or a breach of contract, but it is not fraud or theft because it lack the necessary criminal intent. If Bob actively photoshopped equipment rental invoices with a specific intent to defraud Client C, he would probably be criminally liable for fraud, although even that isn't an open and shut case as it still basically involves failure to perform a contract according to its terms and a mere breach of contract is generally not a crime unless you intended not to perform it in the first place, when you entered into the contract. | Does B have a legal obligation to inform A that changes were made to the document? This is definitely not a simple yes-no question. One ought to consider not only the tenets of contract law, but also notions of equity and of public policy. On the one hand, courts acknowledge modified contracts that result from a battle of the forms. On the other hand, sliding changes in the contract without adequately directing the counterparty's attention to them tends to contravene the contract law covenant of good faith and fair dealing. In the scenario you outline, imagine the inefficiency and risk of mistake if the parties engage in several rounds of offers and counter-offers by sliding changes scattered all over the latest draft of a contract (this is totally feasible, especially as laws nowhere limit the number of times a party can make a counter-offer). Unless each party is conspicuous about his latest changes to the contract, the dynamics can easily become a matter of which party inadvertently binds himself to unacceptably detrimental clauses (some of which might re-occur after being stricken in a previous draft). This hinders the contract law prerequisite that a contract be entered knowingly and willfully. Although the parties are responsible for reading the contract, subjecting the offeror/offeree to devote valuable resources each time a newly altered contract goes from one direction to the other seems contrary to public policy. Furthermore, that defeats the purpose of negotiations and of the prior efforts each party spent toward the contract (such as valuations and risk analysis). I'm just curious to understand what legally prevents this type of things from happening in general. An offer may include language to the effect of accepting the contract 'as is'. See the provision in the Uniform Commercial Code (for instance, see MCL 440.2207(2)(a)) whereby alterations are precluded "[if] the offer expressly limits acceptance to the terms of the offer". The aforementioned statute also precludes terms which significantly alter the contract. See MCL 440.2207(2)(b). In a context of loan contracts --apropos of your example--, a borrower's unilateral alteration of the interest rate, of payment schedules, etc. constitute material alterations. Indeed, financial institutions are utmost sensitive to changes in interest rates and the timing of cash flows. Even in the case of an offeree's immaterial alterations of a contract, an offeror might prevail under principles of equity. This is more evident in the case of entities which enter and manage a multitude of contracts simultaneously, be it via contracts of adhesion or upon negotiations with each counterparty. In line with my point on public policy, the additional cost of filtering a counterparty's last minute occurrences would make it impossible for economies of scale to develop. | If a business literally has an "exact change only" policy, that can't be enforced in post-pay situations. But if they have a "you are free to overpay, but we won't give you change back", that's different, especially if it's communicated from the beginning. If they tell you they don't give change, then you're taking their goods/services implicitly agreeing to their terms. | Of course it doesn't work. You haven't discovered an end-around to property ownership I gave someone a car and want it back (they refuse) You no longer own this car. It is now titled in their name. Your interest in the car is now exactly zero whether or not they paid for it. I use a shell company to buy my own debt Okay. This has nothing to do with the car. You're now out of the cash it took you to set up this new entity. How are you doing this? I assume it means paying off your creditors with money you already have. You will also have to come up with some type of bogus documents that explain to the future court why this was even done. If you have the money, why do you have debt? My shell company sues me for conveying the car to conceal it from creditors Um, Ok. Now you're also out filing fees. Let's assume you know how to do this without paying an attorney to do it for you. I settle Makes sense, since you're suing yourself. The shell company now gets a court order to seize the car Seize the car how? This is a stretch. A judgement would be against you for the value of the car. You can't settle a lawsuit using assets you do not own. A court won't order something repossessed because of an unrelated squirrelly lawsuit. An exception would be a bankruptcy court that rules the item was sold or disposed of outside the court's orders. I would expect an astute court to hit you with contempt or sanctions for trying to use it to further your interests with some sort of end-around to property ownership. Expect more fees for this use of the court's time. The shell seizes the car No. Now I have the car back No. | You are responsible It is unlikely that the arrangement you had with the sitter amounts to a contract. Even though there was consideration on both sides, at first blush it seems unlikely that both of you intended to create legal relations. See What is a contract and what is required for them to be valid? Notwithstanding, if there is a contract it is silent on who is responsible to for injury to the pet so it would fall back on the law of negligence anyway. For the sitter to be responsible, she must have been negligent. She wasn't. See Is there liability for pure accidents? Looking at the elements: a duty to the plaintiff, such a aduty probably exists. breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), she didn't (see below). the plaintiff must have suffered actual harm, no question that you have. the negligent conduct was, in law, the cause of that harm, and that harm was foreseeable, probably it wasn't (see below). Here are the facts: She took the dog on public transport - not unreasonable, many people do. The fact that you wouldn't is irrelevant since you did not communicate this prohibition to the sitter. She took it to an off-leash park - not unreasonable, that's what they are for. She rode an escalator - it is unclear if she carried the dog or expected the dog to ride the escalator itself. The first is clearly reasonable, the second may or may not be depending on the size of the dog etc. She noted the injury and had it treated - eminentely reasonable. So, in general, she has acted as a reasonable person would. It is also far from clear to me how any of the decisions made would result in foreseeable harm to the dog. Remembering that the standard is would a reasonable person foresee that there was a risk of harm barring extraordinary circumstances. By the way, the legal reasoning is exactly the same if you had entrusted her with your child or your car. | if these questions and answers are found to be legally binding ... They aren’t. Therefore the premise of your question is flawed. It’s like asking “If my dog was a cat ...”. Well, since your dog isn’t a cat we don’t need to hear the rest of the question. |
Who is liable if software causes intentional errors when used in a pirated/unlicensed fashion? In this Academia question comments reads : cracked software has hard-to-detect anti-features bug (example cracked version of a engineering software may use in computations slight less material resistance, so that buildings created with it have a greater cost, or just more material resistance so that buildings you create with it just implodes because computations are wrong My question is: If a building collapses and the root cause is an intentional math error by unlicensed software can the software maker be charged with something? I'm also interested if the builder could use this as a defense. | I think this is a lot like this question Liability for poisoning food one expects to be stolen because you are causing harm to someone/something when they are using your things without permission. That question says that if you expect someone to do something with something that you have purposely made wrong then you are legally responsible for the effects. | Your question mixes up two different aspects of intellectual property. From a copyright point of view, it is perfectly legal to reproduce the features of a one piece of software in another. The functionlity of the software is not copyright (although the detailed look and feel of the user interface might be). However you ask if you, as an employee, can do this by "looking into the code of software X". Presumably by doing this learn something of the organisation and algorithms used. Even if you avoid direct copying, you are likely to have learned trade secrets of your employer, and publishing these is at least a civil tort in the US, and in some states a crime. | Company B has created a derived work from company A's copyright-protected work, so yes, B has infringed on A's copyright. It might be difficult for A to prove it, however, so B might get away with it, but it's still infringement. On the other hand, if B creates software that behaves like A's through reverse engineering, that is, by examining the program's function without examining its code, then they will not have infringed the copyright in the code. | If you aren't including those libraries, then yes because it's entirely your own work. If you are publishing those libraries, then no because their licenses will limit how you can do that. GPL's and MIT's main features are restricting how you can distribute software that includes the licensed code, and they don't allow the "do whatever you want" of public domain. | That depends on how you get the ingredient list. If the list is published and not protected by a patent, then anyone is free to use it in making the same or a similar product. If the product is patented and the ingredient list is covered by the patent, and the patent is currently in force, then making a similar product would probably be patent infringement, and the patent holder could sue and collect damages. If the list is secret, and has been protected as a Trade Secret, and if the would-be imitator gets the formula improperly, then the owner of the formula would have valid grounds for a trade secret lawsuit and to collect damages in that suit. Improper means would include breaking into the owner's files, or inducing an employee or contractor to violate a confidentiality agreement. But analyzing the product and figuring out its composition, a form of reverse engineering would be perfectly proper, and would give the formula owner no claim. Similarly, if the owner was careless and allowed the formula to be disclosed, the imitator would have done nothing improper. So the outcome depends on the details of facts not stated in the question. | The idea for an app is not subject to copyright. Only the artifacts of the app itself (sourcecode, images, texts, sounds, etc.) can be. So if one only copies the idea and creates their own version of all the other assets, then they are not violating copyright. However, in some cases, ideas can be subject to patents. But patents on software are tricky. First of all, only new ideas can be patented. When a supposed new idea was already published before, then that's called "prior art" and you can not patent it. Then getting a patent means a lot of investment in money and time (which is very different from copyright which you get automatically the moment you make something copyright-worthy). So not everything that could theoretically be patented gets patented. And then, many jurisdictions do not recognize software patents at all, and those which do have different limits on what is and is not patentable when it comes to software. This means patents are rarely a concern when copying the app idea of someone else, but not never. And another possible concern is the third pillar of intellectual property: Trademarks. This protects the name of the app. Trademark law oversimplified forbids to create a competing product with a name which might confuse customers. So if you created StevesSuperCoolAppForCoolPeople and I create StevesSuperCoolAppForCoolPeople - Simplified Edition, then I would be violating your trademark, because my product name sounds as if it was your product, when it is in fact an unrelated product with a similar purpose. | There is no provision for automatically relicensing infringing works (for example, distributing a program that contains parts covered by the GNU GPL and that is therefore a derived work will not automatically place the infringing program under GPL, even if that is the expected way for derived works to comply with the license. Instead, the derived work becomes at the very least undistributable, as there are competing copyright holders that disagree. | The difference between commercial and non-commercial software use is about as clear as it gets, outlined by the definitions in the license above. One makes money, the other doesn't. There is no gray area. Your intent or expectations for a project may seem to alter the difference between the two and add a gray area in your mind, but they don't. Once you are a commercial user, buy a commercial license and/or upgrade the non-commercial license to commercial. That's the legal angle; and what is illegal and what is unethical are not always the same. If you still feel like your intent does make a difference and you feel unethical about using a non-commercial license - because you are building a community and hoping/planning on making money - buy the commercial license to begin with. |
If a stolen item is stolen again, who has the liability? This is a follow up on a poorly phrased question. Assume a car is the only asset anyone has in this scenario. Person B steals a car from person A by forging the registration in a fraudulent manner. Then Person C steals the car. What happens to the car once everyone is caught? Does person A get the car back, or are they only able to collect damages from person B, who is broke? Does person C keep ownership of the car since they didn't steal from the legitimate owner, or do they give it back to A? | You cannot pass on better title than you have The fraudster (B) in this scenario does not have good title in the car and so the thief (C) doesn't either: 1) because they are a thief and 2) because the person they stole it from didn't own it. If C had paid B for the car then C would still not own it because while they are no longer a thief, B still doesn't have good title. This is the case even if C didn't know that B didn't own the car. A is entitled to recover the car from whoever has it. There are 3 exceptions to this rule: Voidable title: If B acquires title through a contract that is voidable (e.g. A is a minor) and then sells it to C. C as an owner in good faith owns the goods even if A voids the contract with B. Entrustment: If B has been entrusted the goods by A and sells them (perhaps by mistake) to C in the ordinary course of B's business. C as a good-faith buyer owns the goods. A can seek recompense from B but cannot get the goods from C. This probably needs an example, I take antique jewellery to an antique jeweller for cleaning, the jeweller's assistant mistakenly sells them, I lose the goods and the jeweller must compensate me. Negotiable instruments: Certain things, notably cash, cheques, shares and bearer bonds are subject to different rules. If B steals, say cash, from A and then uses that cash to buy something from C, A cannot demand the return of the cash from C unless they can prove that C knew that B had stolen it. Negotiable interests belong to anyone who acquired them in good faith. In all cases, a good-faith actor who is out of pocket is owed compensation from the bad faith actor - whether it’s possible to collect this is a practical rather than a legal issue. | I gather that you either a) don't want the bike or b) are physically unable to retrieve it. You are acting like a spectator here. You ARE involved. By doing nothing, you are creating trouble for others, and failing to create a good. They must go through an extensive process to protect the rights of an owner they don't know who even is. What you should do, is to send a paper letter to the landlord at that complex. Dear landlord, You may have a bicycle at Location Here inside Apartment Complex Name Here. I am the owner of the bicycle. I had to leave the region, and I had to leave the bicycle behind. I cannot come back and claim it. Perhaps you know someone who could use a bicycle. Please give the bicycle to them, or dispose of it as you see fit. Here is the key to the lock. Signed, Your name Why a paper letter? Because you can't email a key! If you sent an email and key separately, they'd get confused. Plus, the signature on paper is legally binding, so they don't have to worry about it being a trick. Tape the physical key to a piece of paper, to keep it from rattling around and chewing a hole in the envelope. (it could be the paper the letter is written on, note that a printout of a Word document is fine). Paper letters have gone out of style, I know; you can work out how to send them, but an older person will help you do that faster, since well, we used to do everything that way. Now if you do want the bicycle, that gets harder. You will have to have one of your roommates give a key to someone who can retrieve it for you and store it for you. And you/they may need to coordinate with the landlord to even get access to it / find out if it's still there. This is probably a waste of your time. | For the offense of receiving stolen goods, "tracing" does not usually apply. It must be the actual good stolen and not proceeds of illegal activity. Tracing could come up in an effort to impose a "constructive trust" (usually by a private party) or "civil forfeiture" (usually by law enforcement) on the proceeds of embezzlement or fraud, for example. Tracing in this circumstance is governed by broad considerations of equity law and are highly fact specific. The methods are fairly ad hoc and mostly come down to rules of reason. For example, a court might find that anything clearly purchased with clean assets that were not comingled with dirty assets are not subject to forfeiture or a constructive trust, but that the entire amount of comingled assets might be subject to forfeiture or a constructive trust up to the total amount less the amount of clean assets which were comingled. This issue came up in the U.S. Supreme Court of Luis v. United States in 2014 over whether clean funds of someone subject to fraud liability could be frozen to protect the solvency of someone who may have already squandered the dirty funds when the defendant wants to use the clean funds for an expensive legal defense of the case (SCOTUS said that assets purely traceable to clean sources can't be tied up so as to prevent them from being used in a legal defense of the case.) Tracing generally does not extend to a bona fide purchaser for value (i.e. someone with no knowledge of wrongdoing is paid fair market value for something or pays fair market value for an asset) of something from the person engaged in misconduct because there was no economic benefit from the transaction to either party's net worth. What if Bob offers a smaller sum of money to many people, small enough that Bob could easily afford to give such a gift to one person, but the combined cost of so many small gifts adds up to an amount bob couldn't/wouldn't have been able to afford without his supplementary income? Could someone argue that the gift they received from Bob came from his legal income, but the other gifts Bob made to others was due to Bob's illegal activities, by claiming Bob was likely to give a gift to them without the extra illegal income but not to the others etc? In this situation, the gifts would be a "fraudulent transfer" because absent his illegal assets, Bob would probably be insolvent (i.e. have debts in excess of his assets), and transfers made without receiving substantially equivalent value in exchange can be unwound by his creditors if he is insolvent himself within a certain number of years. His solvency at the time of the gift rather than tracing from legal or illegal income respectively, would be the relevant legal issue. Of course, if the amounts of the gifts were small, it might not be economic to sue for their return. | 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. | This is likely to depend on whether Person B is aware of what Person A is doing, regardless of any imputations Person A makes as to the nature of their business. If Person B is aware, or it is found that Person B ought to have been aware, that Person A is doing something illegal, then they may be held contributorily liable for damages suffered. For instance, in (what is still) a landmark case for copyright infringement, A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001), Napster was found to be contributorily guilty of copyright infringement. A defense that they attempted is they weren't aware of it - which was thrown out on the basis that they should have, and could have, known that it was happening. I'm not a lawyer, but you'll need to give a lot more information about the situation for liability to be determined. Oh, and also — both of them could be held liable. It's not necessarily a case of one or the other. | Claim is irrelevant. Specific to Maryland Law, Assault occurs when one makes or attempts to make physical contact with another OR intentionally frightens another. Alice saying she helped to steal the car and your definition of the theft as "accosted Carol" implies one of the three forms of Assault took place. Alice just admitted to commiting the crime she thought was wrongly charged to her. The crime she was trying to get out of is called "Assault and Battery" which is where Assault leads to actual injury or physical harm to the victim OR attempts to actually injure or harm another OR puts them in fear of such action. In Maryland Law, the Battery portion almost always is paired with assault while in other states, it might be possible to commit Battery without Assault (though in these states, normally a separate assault charge to Battery is usually added.). As a helpful tip, the two words general break down as follows: Assault: The act of threatening harm or making unwanted non-injurious contact with another person. Battery: Causing Injurious Harm to another person. In Maryland, Alice was rightly charged with assault. Upon capture, Bob will recieve an "Assault and Battery" charge for hitting Carol with the stolen card and may get an addition simple Assault charge for the threats before he drove away. | 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). | When the matter is final (no more appeals), the winner in the suit will request a writ of execution to collect whatever is owed. This may involve seizing a person's cash, car and so on. There are limits to what can be seized (some things are exempt by law), for example they can't outright seize a person's home. However, they can put a lien on it, meaning that when the house is sold, the proceeds go to the winner. There are various limits on what can be taken, for example Social Security benefits, welfare, child support – the details are largely determined by state law. There is also a process where the loser's wages can be garnished (there are federal and state limits on how much can be taken). Ultimately, it may not be possible to collect everything. However, today's lack of funds does not necessarily mean permanent lack of funds. A judgment will be valid for a long time and may be renewed. The reason for liability for damages comes down to basic justice. If you harm a person to some extent, you should compensate them accordingly for the wrong that you have done to them. The job of the jury is to determine two factual questions: (1) did the defendant wrongfully harm the plaintiff, and (2) what is the extent of harm. The ability of a defendant to pay such an amount does not affect the answer to those two questions, so inability to pay is legally irrelevant. how much harm was done |
Can an organization build something for its own exclusive use, that is patented by someone else? Based on these two questions: Could a charity manufacture patented medications for free? Can I build something for personal use if it is patented? I suspect that the answer will be no, but I want to ask anyway just to get it directly. I hope to keep it more general than this, but for example: There is a conceptual design for a loudspeaker that is easy to manipulate in a simulator and gives impressive theoretical performance...and is patented by someone else. The owner sells finished products exclusively to the very high end of the professional market (if you have to ask, you can't afford it), and hobbyists have built their own designs using that concept for their own living rooms, claiming that the owner has given blanket permission to hobbyists for their own personal use. I've also seen someone with the owner's name on public hobby forums, who explains it in deep technical detail, and all of his posts are many years old now. So: Taking a cue from the hobbyists, what if an engineer/carpenter team were to design, build, and install one specifically for a non-profit organization where they both volunteer already? (the engineering and labor are donated, and the organization buys the materials) What if I were to design and build one myself to use in my own rig for profit? My understanding of the purpose of patents is to prevent the loss of revenue caused by someone else undercutting the inventor, probably because the someone else doesn't have to make up the expense of inventing it. In that framework, and given either of the situations above, it would certainly be a violation to sell it, because that customer might have bought it from the owner instead if there wasn't a cheaper option. But if the available budget clearly does not allow purchasing from the owner, and thus the owner would not have had a sale anyway (we'd use a different design that is available more cheaply), is it okay to make one (or several) personally or in-house for personal or in-house use, with the caveat that it is illegal to sell until the patent runs out? Of course, we can't outsource the work because it would mean that they would be selling to us and thus violate the patent themselves. It seems to me that it must all be done in-house, to even have a chance. So does that chance exist? Notes: It might seem like several different questions, but it's really the same question several different ways. Nor am I asking if it's okay to violate in a particular situation. I'm asking if the action in that situation IS a violation. | 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. | First of all being the "founder" of a startup in no way implies that one wrote all the code of the startup's primary or signature app. The founder could have hires coders, or had partners, or used open source code. But let's make some assumptions. Suppose Alice has created a startup, and wrote the code for an application. Suppose Bob invested in the startup, and got 30% of the stock, What rights does Bob have to the copyright on the code? It depends entirely on what agreements Alice has made. Alice might have sold or assigned the copyright to her startup firm, call that F1, If so, F1 owns the copyright, and Alice can't reuse it without F1's permission. If Alice has retained the other 70% of F1, she controls it and can have it grant her whatever permissions she likes. But if she has sold or assigned a majority shore to investors, she will need to persuade the management of F1, or a majority of the shareholders, to grant her permission. Alice might have merely licensed the code to F1. In this case she retains the copyright. If the license was not exclusive, she can use the code as she pleases, but so can F1, in accord with the license. In neither case does Bob directly own the copyright, or a share in it, unless a separate agreement granted or sold that to him. But he has a right to a share of the profits, if any that F1 makes, and a right to vote on decisions that 1 makes, long with other owners of F1 If Alice never formally transferred or licensed the software to F1, she still owns the copyright and can do as she pleases, even if shew sold most or al of F1 Note that to transfer a copyright there must (under US law) be a written and signed document, one signed by the owner or the owner's agent. It must specifically indicate what copyright(S) it transfers. A purchase of an interest in a business does not suffice without such a document. | How can I find out whom the intellectual property now belongs to? For the patent, is this possible through the patent office? If it is a patent, the patent office; if it is a copyright, the copyright registrar. You could also look at the return from the auction in the bankruptcy court case file, which would control even if the patent office and copyright registrar records haven't yet been updated. You could also call the person who conducted the auction, or the lawyer who arranged for the auction, to ask. Often they would cooperate in telling you this information since a bankruptcy auction is, by definition, a public sale anyway, and cooperation might help them gain positive referrals from you in the future. If the assignee has not been changed in the patent register, is it possible to reassign the patent to myself, since the company has apparently neglected to do so? No. Doing this would be a form of fraud or embezzlement. The intellectual property became the property of the bankruptcy estate. If the bankruptcy estate is determined to have property not disposed of in the case, you would have to petition the bankruptcy court to have the remaining assets sold for the benefit of the creditors of the estate at fair market value. The Follow Up Questions I'm going to decline to answer the follow up question about how to arrange to purchase intellectual property from someone when you would like to own it, once you determine who the owner is. This is a more general question that applies to lots of circumstances and is as much a question of economics as law. There is an Ask Patents.SE forum, which might be a more appropriate place to ask that question. | Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display. | Non-Profits Need Not Have Owners But Must Have A Lawful Purpose Any non-profit company, for example, a 501(c)(3), is ownerless and can be run by a self-perpetuating board if desired, rather than having delegates that provide an outside source for new board members. In that case you have to set forth a purpose of the company or trust, to which its assets and profits must be used, and it must be managed in accordance with that purpose. You can also have a "private foundation" that is effectively ownerless, again with a designated charitable purpose. Generally speaking, the law limits how much compensation can be paid to officers and employees of such a company and restricts self-dealing transactions by such a company. You probably cannot create a valid trust or business with no beneficiaries and no designated charitable purpose which is supposed to merely accumulate its profits and assets. Ownerless Cooperatives Are An Oxymoron Your reference in this and other posts to an "ownerless cooperative" is basically an oxymoron. A cooperative is an entity owned by a class of people who have a contractual relationship with the entity (usually consumers or producers) who are the owners of the company with voting control and who are entitled to an adjustment of their transaction prices with the cooperative via a rebate or surplus check proportionate to the dollar volume of their dealings with the cooperative (Northwest Mutual, must rural electric companies, and most credit unions would be examples of consumer cooperatives, Ocean Spray is a good example of a producers cooperative). An ownerless entity is pretty much by definition not a cooperative. An excellent overview of forms of entity organization other than investor owned stock corporations can be found in The Ownership of Enterprise by Henry Hansmann. The Life Of The Law Is Not Math Or Logic Honestly, it sounds like, in your several posts on the subject, that you are attempting the hide the ball of an ulterior purposes which is material to the legality and organization of an entity. The law is not like science or mathematics. You can't prove a bunch of isolated propositions and then string them together logically. The law operates on an entire comprehensive "fact pattern" and even if every step of your chain of reasoning to an ultimately result is supported by legal authority, this does not mean that this will be the result you get when you put all of the pieces together. That kind of logical reasoning doesn't work in a legal context. The heading of this section is a paraphrase of a famous statement about the law by Oliver Wendell Holmes, Jr.: The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. from "The Common Law" (1881) at page 1. Blockchains Are Not The Legal Innovation That They Claim To Be Using blockchain technology to manage "tokens" of voting control in an entity is ultimately completely irrelevant. Blockchain technology is just another alternative to certificated shares, shares kept on an ownership ledger, or shares kept through secondary shareholding intermediaries or brokers. The technology used to keep track of voting control or economic ownership is irrelevant, and some common entities (e.g. homeowner's associations) have ownership that is basically determined via a crude public blockchain called the county clerk and recorder's records. People who think that blockchains provide any significant legal innovation into anything (e.g. here) are fundamentally misguided and typically are not people familiar with the law who have misconceptions about how the law works. Also, contrary to the hype, blockchains are not fraud-proof and indeed, involve serious systemic risks of instability because an error in an old transaction can disrupt lots of current claims. Claims such as those made here that blockchain transactions are irrefutable are naive and basically false. A block chain is a bit like a real property record system without an adverse possession rule to make ancient glitches irrelevant. Moreover, blockchains are a solution to a non-problem. Authenticating ownership and voting rights, economic entitlements, and corporate actions is something that has never posed a very significant economic problem ever since writing was invented. These are economic problems that were already effectively solved in the days of the Minoans, and widespread ownership of well authenticated entities by numerous ever shifting groups of owners was a problem well in hand by the days of the British East India Company. Anonymous Ownership Or Contribution Records Are Illegal Truly anonymous ownership, however, is legally prohibited, even though ownership need not be made a matter of public record. In the case of for profit entities, by securities regulation which requires disclosure for purposes of exercising voting rights and for disclosing large blocks of ownership as required by law, and for purposes of tax law. In the case of non-profit entities, it is prohibited by virtue of laws regulating private foundations that impose tax requirements when certain concentrations of contributions come from a small, related group of people. In the case of political organizations, campaign finance laws require disclosure. | It may be useful to draw a distinction between the NFT and the Art referenced by this NFT. There is no intellectual property in an NFT itself because an NFT is not a creative work, invention, or trade secret. Ownership of the NFT. As far as I'm aware, no laws recognize the Ethereum blockchain as an arbiter of ownership. However, NFTs and other “crypto” assets seem to be recognized as property. Thus, it can be the case that lawful ownership diverges from the ownership records on the blockchain. In the referenced scenario, someone gained control over an NFT but likely did not receive the property rights in that NFT (i.e. stole it). License to use the Art. The “Bored Ape Yacht Club” terms define ownership of the NFT purely in terms of the Ethereum blockchain, and ignore legal ownership: Ownership of the NFT is mediated entirely by the Smart Contract and the Ethereum Network The blockchain-owner of the NFT is then granted a license to use the Art via these terms. This leads to the following conclusions: There are no intellectual property rights in the NFT. Any intellectual property rights in the Art are held by Yuga Labs LLC, the company behind the “Bored Ape Yacht Club”. Nothing in the terms transfers ownership in the Art. Yuga Labs LLC grants the blockchain-owner of the NFT a license to use the Art. Here, this means that the thief held the license, then after the sale the subsequent buyer. Yuga Labs LLC does not grant the legal owner of the NFT any rights, in case the legal owner and the blockchain-owner are distinct. Of course, nothing would prevent Yuga Labs LLC from also granting a license to the legal owner of the LLC. They can still do so retroactively, as their license grant to the blockchain-owner is probably not exclusive. But I would be surprised if they would do so, since it would shatter the “NFT = Art” and “Blockchain = Ownership” illusion that their business model relies on. | The software being free and open source has no impact on whether it infringes any patents or violates any copyrights. Copyrights attach to fixed representations of creative work in a tangible medium (e.g., the actual code and graphical elements of the software in question). As long as you aren't copying the copyrighted work of someone else, you should be in the clear. So, if you write your own code from scratch, or rely on code that you're allowed to use (e.g., "free" software with a permissive license that allows it to be used freely), you should be fine. On the other hand, if you copy a chunk of code that you aren't allowed to use, and then change the variable names so that it's superficially different, you're likely violating someone's copyright. Patents are a much more difficult question. To determine whether you would infringe any patents, you would have to read the independent claims of every patent that might be related. If you perform all the steps of any one of those claims, then you are infringing that claim (and therefore, the patent in which it is found). Unfortunately, this is much easier said than done. First, it may be difficult to search for all the potentially relevant patents, and once you've found them, there may be far too many to read. Second, claims are written in a type of language that is specific to patents, and someone without experience in patent law may not understand them correctly. Finally, the terms in the claims may not take on their plain English meaning, but rather may have been defined by the language in the rest of that patent, so it's possible that you might incorrectly think you were in the clear based on a misunderstanding arising from that. All that said, it may be best to go ahead with implementing an idea and then waiting to see what happens. Chances are that the implementation will arguably infringe some patent in some way, no matter what's done. But chances are also high that there will never be any worrisome enforcement action taken against it by a patent owner, simply due to the difficulty and expense associated with enforcing patent rights. | The whole purpose of a patent is that the contents of the patent becomes public knowledge, in exchange for a time limited monopoly. Therefore you are allowed to do anything, since you are not just allowed but expected to examine the patent in order to improve on it, except that you need a license to sell or give away products implementing the patent as long as it is valid. The only thing to be careful about is that by publishing source code, you might be enticing others to infringe on the patent, so I'd recommend not to do that without advice of a lawyer. PS. With software, the interpretation of "making" software in patent law may be a bit surprising. There was a major case between Microsoft and AT&T about that. The software developer isn't "making" the software. The build engineer putting everything together isn't "making" the software. The CD manufacturer making a million copies isn't "making" the software. The person installing it on their computer is the one who makes it. |
Entering into a Credit agreement without signing any CA in the UK My wife recently registered herself to an online learning course and opted to pay the course fees monthly. During sign up she was sent terms and conditions of which buried in the terms and conditions state that upon cancelling 'You shall immediately pay us all outstanding invoices and interest'. They had originally sent her the wrong course material, corrected the issue after around 1 week and then around another week later she realised that the course was not what she expected and then cancelled. The company is now claiming that by registering and logging in she has accepted their terms and conditions and is liable to pay the full course fees or have the debt sent to a debt collector. During the sign up process it was not made clear that she was entering into a credit agreement as it is mentioned no where other than a few lines in the terms and conditions. Is something like this enforceable? | What credit agreement? A credit agreement involves someone advancing you money which you agree to pay back with interest - there is nothing like this here. You entered a contract for the course the terms of which were that, at your election, you could either pay upfront or pay by monthly instalments. That's not a credit agreement, it's a straightforward contract for services with alternative payment terms. One of the other terms was that if you withdrew then the full amount would be immediately payable. Under normal contract law principles, this is all fine. Consumer Law Under UK consumer law, you have a right to cancel a contract for services formed off-premises if you do so within 14 days. "... around 1 week and then around another week ..." might be within 14 days; if it is, you are entitled to a full refund; if it isn't, you owe the money. There are also rules about what information they needed to give you. If they haven't then they have committed an offence and the contract may also be void. | No The contract is created at the moment that an offer was accepted. In normal circumstances: You accepted an offer that they made to the general public by sending a purchase order for specific items at specific prices, or They accepted your offer by communicating their acceptance to you (being advised that the goods have been dispatched counts). However, in this circumstance, the company has been explicit that the contract is only created when either: You checkout and pay, or They “supply an invoice to you.” It appears that neither event happened so there is no contract. Their specific terms have overridden the common law rules on offer and acceptance (as they are allowed to do) and the offer has not been accepted until you receive their invoice. Specifically, it cannot be accepted by performance (dispatching the goods) and the requirement for the invoice to be supplied overrides the postal rule. Note that, in this case, you got lucky. 99 times out of 100 there would have been a valid contract and you would have breached it. In future, cancel orders specifically, don’t make assumptions. | Bill and Jane are free to enter into a contract where, among other things, each provides valuable consideration; in this case Bill provides valuable lawn mowing services and Jane provides valuable money. In week No 1 they have negotiated the terms and the contract is complete when Bill mows the lawn and Jane pays the money. If Bill turns up next week without Jane's instruction then there is no contract and Jane does not have to pay anything; I don't think this is what you are asking but I include it for completeness. If it is understood that this arrangement continue week after week then either there is an ongoing contract or, more likely, a series of independent contracts. If there is an ongoing contract, then it can be renegotiated but it cannot be changed unilaterally by Bill. That is, he cannot unilaterally increase the price to $2. If there is a series of contracts then the terms of each of those contracts will be the same based on the course of dealing. Basically, the parties have accepted over a long period of time that the rate for a mow is $1 and Bill would have to get Jane to accept the revised rate before he mows the lawn. For your example, Jane owes Bill $1 but if she wants him back next week she will have to agree to Bill's rate. | Neither The contract is completed when each party has totally fulfilled its obligations under the contract. In this case, it is when the purchaser has consumed or otherwise dealt with the banana to their satisfaction. The vendor has ongoing obligations under the contract until this happens. For example, obligations that the banana is of merchantable quality and fit for purpose. If the purchaser peels the banana and discovers that it is "off" or eats the banana and develops food poisoning then the vendor still has obligations and can be sued under the contract. Yes, I realize that no one is going to sue anyone over a rotten banana but let's assume that "banana" is code for 54km of motorway construction and £1 is actually £1 billion. When is the contract formed? This is not a trivial determination and there are literally hundreds of thousands if not millions of lawsuits that have turned on this exact question. Once the contract is formed its binding on both parties; until then, either can walk away (subject to estoppel) The traditional analysis involves offer and acceptance. In your banana scenario, the shop displaying "Banana's: 50p/each" (it's a fruit shop - they always have unnecessary apostrophes) is not an offer - it is an invitation to treat. An offer is made by Ben placing the banana on the counter and proffering the £1, it is accepted by Sam taking the £1. At this point, the sale is binding on both parties. Ben has fulfilled all his obligations under the contract, Sam still has some. In addition to those discussed above, he owes Ben 50p. Strictly speaking, this is not an obligation under the contract but a debt due and payable. Consumer protection law The proceeding is a strict contract law interpretation - many jurisdictions have consumer protection legislation (and food safety laws for bananas) that impose additional protections and may change the contract law position. | I know it's not a huge amount of money, but I'm not currently in a position to pay it. Is it still legal to send invoices this long from the past? Yes, it is legal. And the surveyor is still within the statute of limitations to sue you for breach of contract. Beyond the purely legislative aspect, personally I would encourage you to pay the surveyor once you are in a position to do so, even if the statute of limitations had expired. From your description, it seems that the surveyor acted with nobility in that Even though he didn't mention any payment, he sent me the survey. and there is no indication that the survey was faulty. Thus, it would be opportunistic not to honor your part in the contract under pretext of the statute of limitations. Consider this: You would not wish to be deprived of compensation today (or once the debtor becomes able to pay you) simply because years earlier you were too overwhelmed to send an invoice for work you actually performed. | Don’t ignore the debt collects In most jurisdictions, your failure to pay can and will be recorded on your credit history. This may affect your ability to obtain finance or the rate you pay for it. For credit reporting, there is no need for the creditor to prove the debt before doing this. For example. In general, you are not legally allowed to default on a contractual obligation (i.e. not pay the bill) even if the other party has defaulted on theirs (i.e. failed to complete the work). It is not clear that you have explained to the contractor that you are withholding the remaining payment until they have fixed the alleged defects or if you have just not paid the money. When you have a contract dispute you need to be clear and take active steps to resolve it. Perhaps head office thinks all these items have been resolved. Perhaps you think they are defects or omissions but they are actually within normal tolerances or are exactly what you contracted for. Unless you talk to them, you can’t resolve it. When you have set out the disputed items, given them a time to fix them, told them you will pay when they are fixed, and possibly set out an alternative method of resolution (like you accepting the defects for a 5% discount) then you have a bona fide dispute. At that point you can tell the debt collector this and they must stop pressing you and remove your name from the credit reports. | You need, at least, to let the person receive 2 reminders which have to name a reasonable period (after the first exceeds, you can send the second) and if the last deadline exceeds, you have the possibility of escalating further. Although often repeated, this is not correct which makes most of your argument moot. By German law (specifically § 286 BGB) these are the exact conditions for a default of payments: (1)If the obligor, following a warning notice from the obligee that is made after performance is due, fails to perform, he is in default as a result of the warning notice. Bringing an action for performance and serving a demand for payment in summary debt proceedings for recovery of debt have the same effect as a warning notice. (2)There is no need for a warning notice if a period of time according to the calendar has been specified, performance must be preceded by an event and a reasonable period of time for performance has been specified in such a way that it can be calculated, starting from the event, according to the calendar, the obligor seriously and definitively refuses performance, for special reasons, weighing the interests of both parties, the immediate commencement of default is justified. (3)The obligor of a claim for payment is in default at the latest if he does not perform within thirty days after the due date and receipt of an invoice or equivalent statement of payment; this applies to an obligor who is a consumer only if these consequences are specifically referred to in the invoice or statement of payment. If the time at which the invoice or payment statement is received by the obligor is uncertain, an obligor who is not a consumer is in default at the latest thirty days after the due date and receipt of the consideration. (4)The obligor is not in default for as long as performance is not made as the result of a circumstance for which he is not responsible. Depending on what was contractually agreed on the default happened even before the first warning. For example that is the case if a specific payment due date was agreed to. Even if a warning would be required it is only one and you can see that no requirements on the specific wording or form on that warning is given. I don't know how you assume an "official reminder" should look like. According to the law a specific and explicit demand to fulfill an obligation is enough. Also, the warning does not need to contain a specific date. If it doesn't the default is effective immediately. | This would not be "legal jeopardy" per-se, really the only remedy that Stack Exchange would have in a case like this would be to ban both accounts. It would be different if you caused SE some kind of monetary/reputation damages to the site itself. From SE's Acceptable Use Policy: Identity Theft and Privacy. Users that misleadingly appropriate the identity of another person are not permitted. It seems your described scheme would violate that term. But this isn't a legal problem, just an operational one. You aren't violating any law (unless there are local laws against this) by paying somebody to "be you" on SE. The most that this would earn you and your cohort would be a ban and probably removal of the contributions. |
Are US doctors allowed to charge insured clients more than uninsured clients? Is a U.S. doctor allowed to charge a client with insurance more than a client without insurance? I was told the cost for my visit was $40 if no insurance but $60 co-pay if I have insurance. I called my insurance but was told to ask a lawyer. | In the US, people are generally allowed to charge arbitrary amounts for services, as long as they do not violate various anti-discrimination laws in doing for. For example it would be illegal to charge people of one race less than they charge people of another race, because of federal and state anti-discrimination laws. Three primary factors govern the legality of a particular form of discrimination. One is the type of interaction, for example "voting rights", "public accommodation", "employment", "housing" – medical treatment would generally fall under "public accommodation". The second is jurisdiction – there can be federal, state, and municipal laws governing a particular kind of discrimination (the lower in the hierarchy you go, the stricter the laws tend to be). Finally there is the "protected class", that is, the basis for discrimination. Protected class is extremely variable, given the preceding two factors. Age discrimination is legal in ways that race discrimination is not. "Has insurance" is not a protected class anywhere, so this does not violate any discrimination laws (per se). There are numerous legal forms of discrimination which are analogous, for example to shop at Costco at all, you have to be a member; there are numerous businesses that offer "member discounts"; some doctors work on a "subscription" basis where they don't treat you unless you are a (paid) service subscriber. The idea that a service has to treat all comers identically is legally incorrect. Co-pay rates are dictated by insurance companies, and can vary depending on the specific insurance carrier that you have. To the extent that there are no specific laws saying otherwise, a service provider is legally entitled to charge less to a person who does not make a claims for coverage by medical insurance – or they could charge more. Indeed, the "without insurance" cost of medical services is typically higher, and the insurance company insists on doctors accepting lower compensation. A "practical" but somewhat risky solution is that if you know that the copay is higher than the street price, you can simply not reveal that you have insurance. However, sometimes an office visit results in a finding that some treatment is needed, and the street price for that treatment may be substantially higher than the insured price. At any rate, contractually-determined co-pays are legal. I should mention a remote possibility for applying anti-discrimination laws, owing to sec. 1557 of ACA. See this article on health care discrimination litigation, where the law enabled "private right of action for disparate impact claims opens the door to class-based claims challenging facially neutral health care policies, treatment decisions, and insurance coverage on the basis that they disproportionately affect members of protected classes". Under this regime, if a policy effectively discriminates on the basis of a protected class, without explicitly mentioning the class, the policy could still be found illegal. If there is a strong enough correlation between race and having health insurance, then "having health insurance" could be found to be a substitute for discrimination on prohibited grounds. There isn't enough case law on this issue, that we can clearly say that such an argument would or would not work. | You will almost certainly be sued For a small amount like this they would use junior lawyers and while the suit may take a while I’d be surprised if a lawyer spent a week all up on such a simple case. Say 40h at $200 = $8,000 which, when they win, you have to pay. Bargain. | Your personal liability depends on your state law regarding the family car doctrine, so the answer there is "maybe" (Texas is not a state with that doctrine, so simple ownership of the car does not confer liability). You would be liable if your supervision of the child was negligent, which means approximately that you knew or should have known that she was a bad driver and would cause damage. Still, the insurance company is suppose to indemnify you (plural) against such loses, as long as they are legally required to do so. That would include many considerations, such as whether the driver was covered under the policy, whether the car was being used contrary to the terms of the policy (being used commercially), and so on. The insurance company is entitled to make a reasonable determination of whether they are responsible for the loss (and if so, to what extent). If they actually decline to cover the loss, you would need to sue them to make them comply with the terms of the policy (and your lawyer would give you a detailed explanation of why they are not liable, in case they aren't). The plaintiff works with his insurance company to recover his insured losses, and with his lawyer to recover any uninsured losses. His insurance company works with your insurance company, up to a point, and then the lawyers get involved. Your daughter does not work with his insurance company, and your insurance company probably has said something along the line "only talk to us". The insurance that a driver typically has may cover some of their own medical costs, but does not provide a payment for "pain and suffering": that is an uninsured loss. It is not generally required that drivers carry insurance to cover their own medical expenses – it is required that they insure against damages, in general, suffered by other parties (if the defendant is at fault). So there is probably nothing for the plaintiff to work out with his insurance company. In Texas, if the defendant is entirely at fault, defendant will be liable for 100% of plaintiff's damages. If defendant is 90% at fault, defendant will be liable for 90% of plaintiff's damages. If defendant is 49% at fault, defendant is not liable. Defendant can, in any event, also sue for damages, so if defendant is 49% at fault, defendant can recover 49% of her damages. The insurance companies might be able to talk it out and reach a clear resolution of the matter, but it could be more in their interest to throw the dice and work it out in court. One can always sue at the very start, and drop the suit if it becomes advantageous. | Yes, there is a reasonableness limit, and this is especially true in consumer transactions. If you were given an estimate and the final bill is a lot more than what you were expecting, you can dispute it. The final price should be ‘reasonable’. The law doesn’t say what counts as reasonable, so you’ll have to agree it between you. You should consider: the estimate you agreed to [if there was one] any changes, and why they happened anything that happened that was beyond the control of the trader, like bad weather or the cost of materials going up https://www.citizensadvice.org.uk/consumer/getting-home-improvements-done/problem-with-home-improvements/ When it comes to work itself, the act states that a tradesman or professional has a 'duty of care' towards you and your property. Any standard or price you agree must be honoured. But if it isn't agreed in advance the work must be done to a reasonable standard, at a reasonable cost, and within a reasonable time. So if you haven't fixed a price, you don't have to pay a ridiculously high bill. All you have to pay is what you consider 'reasonable' and invite them to sue you for the rest. Be careful though, in some circumstances when you are withholding payment you may have a claim made against you by a supplier if you are in breach of contract. What's a reasonable amount would be what similar tradesmen would have charged for the job. So get a few quotations. https://www.bbc.co.uk/programmes/articles/1fdlwC9xzyxjCpWMlsCGG3j/supply-of-services NB that article refers to The Supply of Goods & Services Act 1982, which was partially superseded by the Consumer Rights Act 2015. | Now I'm having another conversation with a lawyer and I'm not particularly happy (not to say outraged) that to answer a simple question they require £95 + VAT for 30 minutes Skype session. Maybe it is a common practice in law industry - in my industry (web development) we share our knowledge in an open-source manner. The rate you were charged is actually reasonable for such a limited engagement. Few lawyers are willing to even consider providing any advice on such a limited basis. Most would try to limit their clients to cases generating thousands of pounds in an in person visit. Lawyers are in the business of selling knowledge and time, not documents and results. An open-source approach would undermine their business model just as much as it would for the movie industry or the recording industry. While I appreciate professional legal advice (I know it is required) I have a belief that by obtaining some knowledge first I'll be in a position to ask better questions. This belief is not necessarily very well founded in this context. The reality of information about the law is that the raw data has limited usefulness. One of the main things that a legal education provides is an ability to "issue spot" so that you know what points need to be researched and where to look for them. Without the overall context that a legal education provides, knowing what issues you should be looking for is difficult or impossible, and this is particular true in Anglo-American common law systems, where the law is embedded in an opaque network of appellate cases rather than laid out more or less completely in a carefully organized statute. Also, you are almost completely unqualified to distinguish between a simple question and a hard one. Just as it is difficult for a non-expert to know what is difficult or impossible for a computer to do (e.g. turning raw image input in the models of reality is very hard for computers but easy for people, while intense calculations are simple for computers but hard for people), it is often very difficult for a non-lawyer to know what is an easy or hard legal question. For example, the rights of neighboring home owners when trees start to grow across property lines seem like simple questions but are actually extremely complex legally, as is another simple question such as explaining what a book means in IP terms as a book migrates to a new platform. But, some seemingly complex points (e.g. detailed questions of tax law or civil procedure) can have very simple and clear answers. Finally, keep in mind that in a situation like spousal alimony, if you've done as much research as you state, it is very likely that a definitive answer that you are looking for simply does not exist. There a lots of legal questions that do not have clear objective answers. This is because trial judges in family law matters have wide discretion in a lot of the fine points of alimony decisions, much of it exercised at the trial court level that does not generate binding legal precedents and is not widely available to researchers. Therefore, there is really no substitute in evaluating how judges will exercise that discretion for the collective experience of an attorney who has been through the process many, many times before the particular group of judges who are likely to handle your individual case. In sum, while I understand your frustration, a lot of it is rooted in common, but inaccurate assumptions about how the legal system works. | You're thinking of "unconscionability." In the United States, the general rule is that a contract provision will not be deemed unenforceable for unconscionability unless it is both procedurally and substantively unfair. A provision is considered procedurally unfair if it results from some sort of unfair asymmetry in bargaining positions. This could include situations where a party was acting under duress, had a diminished mental capacity, or unequal experience in the . A provision may be considered substantively unfair if it imposes disproportinately unfavorable terms on one party, perhaps by imposing costs far out of line with market prices, or by allocating all risk to that party. If the agreement is not both procedurally and substantively unconscionable, it won't be voided. So the Google TOS may be procedurally unfair because Google's market position gives it disproportionate bargaining power, but because they don't really impose any serious costs on you, they aren't unconscionable. Similarly, a contract provision requiring you to give me your house if you ever forget to turn off the porch lights at night wouldn't be unconscionable if it was agreed to after lengthy negotiations between our lawyers. | As a lawsuit, it doesn't make sense in U.S. law unless you have suffered significant injuries. Your damages are likely to be, at most, nominal ($1) if you discovered it before you were hurt, so you'd only lose the money spent replacing the jar of peanut butter with a non-defective one and the nominal $1 damages. You would not generally have a right to any of your attorneys' fees and personal time spent on a lawsuit like that which would likely cost tens or hundreds of thousands of dollars on an hourly basis (no attorney would take a case like that on a contingency basis), and would take hundreds of hours of your own personal time. | If he is still pressuring you for the money even after filing insurance, talk to your city or county prosecutor's office. If you call the police, they may say they're too busy to deal with it and that it's a "he said-she said" situation anyway. But if you go to the local prosecutor, they should be more interested, as this could be a felony, considering the amount of money demanded, and they can instruct the police to help investigate. |
How can they force people to walk around and tell all the neighbours that you are a "registered sex offender"? I've heard that people who are convicted as a "sex offender" (which is still very vague and cryptic to me) in the USA have to walk around and knock/ring on the doors of all their neighbours (it's unclear how "wide" it applies), and the same thing whenever they move, and wait for them to open and then say to them that they are a "convicted sex offender". That seems to be an invitation to get punched in the face or face more subtle harassment "down the line". Can they really force people to do that? How do they know that they actually do it? Do they take their word for it? Do the cops stand behind them looking dangerous, as to prevent immediate physical danger for the "sex offender"? Do they randomly call some the neighbours a week later to check if the guy has been there and said that? I just cannot imagine ever doing this myself, unless I have a gun pointed to my head or something. Yet it's said so casually like it's a "minor slap on the wrist" or something, when in reality, it's an extremely dangerous (not just humiliating) thing to be forced to do. Especially if this still must be done after a prison sentence, it seems like pure sadism to me. | The "how" part is, get the legislature to pass a law. LA. REV. STAT. ANN 15:542.1 says Any adult residing in this state who has pled guilty to, has been convicted of, or where adjudication has been deferred or withheld for the perpetration or attempted perpetration of, or conspiracy to commit, a sex offense as defined in R.S. 15:541 or a criminal offense against a minor as defined in R.S. 15:541 shall be required to provide the following notifications (1) Give notice of the crime for which he was convicted, his name, residential address, a description of his physical characteristics as provided in R.S. 15:542(C)(1), and a photograph or copy thereof to all of the following: (a) At least one person in every residence or business within a one-mile radius in a rural area and a three-tenths of a mile radius in an urban or suburban area of the address of the residence where the offender will reside upon release, including all adults residing in the residence of the offender Also, school superintendents, landlords, park superintendents. The law does not require ringing doorbells. The police do not actually follow convicts to make sure they do it. You would have to contact police and convicts who have some experience with this to know how it works practically: the law is what it is. | The General Rule: The Prosecutor And Not The Crime Victim Decides You are correct that this is mostly wrong. Pressing charges is something that happens. But, this simply consists of making a report to law enforcement about an incident and asking that the prosecutor either directly, or indirectly through a request directed to the law enforcement officer to whom a report is made, to pursue criminal charges in the case. But, this request has no binding or legal effect, even though many law enforcement agencies and prosecutors offices have a formal or informal unwritten policy of honoring a crime reporting victim's wishes whenever possible. In the United States, a prosecutor can commence a criminal case against someone without consulting a victim of a crime, or over the objections of the victim of the crime, and can even (and sometimes does) incarcerate the victim of the crime to force the victim to testify against a criminal defendant (this most often happens in cases of statutory rape, domestic violence and cases involving organized crime or gangs). Likewise, a prosecutor (in the United States) can choose to decline to prosecute a criminal case despite irrefutable evidence tied up with a bow and the pleas of the victim and lots of other members of the general public. (Not all countries are like this. For example, in Germany, some crimes can only be prosecuted with the victim's consent, and within reason a prosecutor is required to prosecute every case in which there is clear evidence that a crime was committed and the victim's consent, if necessary, is present. While Germany is something of an extreme case, it is much closer to the norm than the U.S. is in countries that do not have a common law legal tradition, while the U.S., while an extreme case, is closer to the norm of countries in the common law tradition of British law.) A crime victim's wishes aren't entirely irrelevant in practice. Many states have a "victim's bill of rights" that requires a prosecutor to confer with a victim when possible over whether a criminal case will be commenced against a defendant, and in practice, many prosecutors in ordinary type cases come to think of the victims of crimes, rather than "the People" as their client, even though that isn't technically correct from a legal perspective. Most of the time, a crime victim's wishes will be respected by prosecutors whether conveyed directly to a prosecutor, or indirectly through a law enforcement officer. But, nothing requires either a law enforcement officer or a prosecutor to do so. Law enforcement officers in some ways have even more discretion than prosecutors do and simply don't pass on information about myriad crimes that they have knowledge of and could prove, every day. But, prosecutors can choose to disagree with a law enforcement officer's exercise of discretion when they do know about an incident, either by declining to prosecute a crime, or by prosecuting a crime that law enforcement officers didn't want to prosecute. And, law enforcement officers as a matter of practical reality can be forced by prosecutors to execute search warrants and arrest warrants. Also, it is true that when neither law enforcement or prosecutors know a crime has been committed that they can't prosecute it, and usually, the way that they learn of a crime is that a crime victim reports the crime to law enforcement. The decision to report or not report a crime not known to law enforcement is, in practice, what "pressing charges" or "not pressing charges" usually means and this does, in practice, constitute a veto power over further criminal proceedings arising from an incident, even though the language used implies a more formal step in a legal process than it does. Exceptions To The General Rule N.B. Notwithstanding the foregoing, there are a few exceptions to the general rule. A handful of U.S. states, so far as I know, all on the East Coast (and also England and South Africa), allow individuals who are crime victims to directly commence the prosecution of minor crimes in a court of law without the intervention of law enforcement or a prosecutor, or grand jury, often without an attorney. Usually, if this is done, the prosecuting attorney's office can take over the case from the private individual litigant if they choose to do so. A discussion of the historical practice with case citations can be found here. In the roughly half of U.S. states and in the federal system, where felony criminal charges must be brought via a grand jury indictment before they can be tried, a so called "runaway grand jury" can bring criminal charges that the prosecutor has a duty to make a good faith effort to prosecute, without the request of the prosecutor convening the grand jury. For example, in a recent Alabama case, prosecutors went to a grand jury seeking felony charges against someone who shot a pregnant woman, and the grand jury decided to indict the woman who was shot for manslaughter on the theory that she caused the death of her unborn child by starting a fight that led to the shooting. The prosecutor's office once it had control of the case, and had observed the public outrage over the decision, then dismissed those charges. There are a few states where a crime victim who is dissatisfied with a prosecutor or law enforcement officer's exercise of discretion can apply to a court to have a disinterested and uninvolved attorney appointed as a special prosecutor to review the facts of an alleged crime and decide independently regarding whether criminal charges should be pressed in a case where law enforcement and the prosecutor's office declined to do so. This is most frequently invoked when the alleged perpetrator of the crime is connected to law enforcement or the prosecutor's office. Also, just become a prosecutor declines to bring a criminal case despite a crime victim's desire to "press charges", this doesn't mean that the victim can't sue the person who committed the crime for money damages (including punitive damages in many cases) from the same conduct that constituted the crime. In big dollar cases involving fraud or theft from a small number of affluent victims (a kind of case I frequently handle in my law practice), this happens all the time. | 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 question is very broad, but yes, there innumerable ways that the actions of a victim/complainant can result in a not-guilty verdict. I'll list some. Contemporaneous consent to contact. If the victim/complainant consented to the contact, then the offence of assault or sexual assault will not have been committed. Self-defence. If the victim gave the accused reasonable grounds to believe that the victim was about to use force against the accused, then depending on the circumstances, it might not be an offence for the accused to take certain actions against the victim for the purpose of defending themself (the accused). The provocation defence that is based on conduct of the victim. See Criminal Code, s. 232, which can result in a not-guilty verdict for murder. | 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. | Police officers are authorized to use force regardless of what they are wearing, to effect an arrest. One issue will be whether the defendants should know that they were under arrest, but there is no requirement to utter particular phrases when dealing with a combative lawbreaker. There will be an internal investigation at some level to determine whether the officers violated any department policy, and no doubt the video and testimony of those in the are would be relevant. There probably is some policy to the effect that you have to distinguish yourself from a street vigilante (you have to state your authority), though I can't find any specific online publicly-available department rules. There is no law that requires an officer to say that he is one, or to show his badge, before starting an arrest. | 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. | There is pretty much never a right to retaliate against harm to oneself, even blatantly unlawful harm. There is a right to defend oneself and others. One can use force to stop someone from inflicting unlawful or unjustified harm, or to prevent someone from inflicting such harm when the harm is imminent. One is not permitted to use more force than is "reasonably required" under the actual circumstances. This is true in pretty much every jurisdiction that i know of. The details on how much force will be considered "reasonable" will vary. In some jurisdictions there is, under some circumstances, a s"duty to retreat". This generally means that if a person attacked can avoid the harm by fleeing with reasonable safety, that person must do so rather than using force in self-defense. In some jurisdictions this "duty to retreat" applies id the victim is attacked in public, but not in the victim's own home. The right to self defense does not apply when the "attacker" is an agent of the state acting lawfully. For example, a prison guard taking a condemned prisoner to a death sentence cannot be attacked on the grounds that the prisoner is engaging in self defense. In theory a police officer engaging an excessive force, particularly unjustified deadly force, may be resisted in self-defense. But courts are quite reluctant to find such resistance justified in practice. There generally must be very clear evidence of egregious misconduct for the court to rule for the non-police person in such a case. Note that "self" defense can equally be defense of another person. Pretty much all the same rules apply. Self defense applies no matter who the attacker is, but that force is reasonable may vary depending on the attacker. Only such force as is reasonably required to stop or prevent the harm may be used with a justification of self-defense. |
Carrying a Sgian Dubh - UK There is a LOT of conflicting information on this subject online, mostly revolving around whether or not traditional dress is "sufficient reason" to carry what is essentially a knife in public. My questions are thus: Is it legal to carry a Sgian Dubh in public whilst wearing traditional Scottish dress in the UK? Does the blade have to be blunted? Whilst all answers are appreciated, I would be particularly interested in any precedents or specific litigation related to this topic. | This is a reasonable summary of knife law although it omits the national costume as a 'good reason' (aka reasonable excuse or defence) for carrying a knife in public: https://www.gov.uk/buying-carrying-knives It is illegal to ... carry a knife in public without good reason, unless it has a folding blade with a cutting edge 3 inches long or less .. Examples of good reasons to carry a knife or weapon in public can include: taking knives you use at work to and from work taking it to a gallery or museum to be exhibited if it’ll be used for theatre, film, television, historical reenactment or religious purposes, for example the kirpan some Sikhs carry if it’ll be used in a demonstration or to teach someone how to use it Legislation s49 Criminal Law (Consolidation) (Scotland) Act 1995 Offence of having in public place article with blade or point (as amended) ... (4) It shall be a defence for a person charged with an offence under subsection (1) above to show that the person had a reasonable excuse or lawful authority for having the article with him in the public place. - http://www.legislation.gov.uk/ukpga/1995/39/part/VI/crossheading/offensive-weapons s139 Criminal Justice Act 1988 Offence of having article with blade or point in public place ... Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him— (a) for use at work; (b) for religious reasons; or (c) as part of any national costume. | The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted. | united-states In the U.S., this would be attempted murder. While Scotland and the U.S. have laws that differ in many respects, this is not an issue upon which I would anticipate that there would be difference between Scottish law and U.S. law. And what punishment would she face? According to Wikipedia: Attempted murder is a crime at common law in Scotland. Attempted murder is the same as the offence of murder in Scottish law with the only difference being that the victim has not died. The offence of murder was defined in Drury v HM Advocate: “[M]urder is constituted by any wilful act causing the destruction of life, by which the perpetrator either wickedly intends to kill or displays wicked recklessness as to whether the victim lives or dies.” Intention can be inferred from the circumstances of the case. Wicked recklessness is determined objectively and is "recklessness so gross that it indicates a state of mind which falls to be treated as wicked and depraved as the state of mind of a deliberate killer." As with all common law offences in Scotland, the maximum punishment available is life imprisonment. Despite the maximum punishment available, I suspect that the Scottish courts would be more lenient than U.S. Courts in similar circumstances, on average. Sentencing judges have broad discretion and that would be informed by the circumstances and reasoning involved. Under U.S. law, in most states, crimes are typically graded into various classes of felonies and lesser crimes (Colorado, for example, has five grades of felonies, and three grades of lesser offenses, with a variety of special enhancements and reductions for particular crimes.) And, attempts are typically one grade lower than the crime attempted, although some U.S. states follow the Scottish rule and treat attempts and the crimes themselves as of the same grade. | In the UK this is just called "an appeal for the suspect to come forward." The UK police are not allowed to lie or mislead as suggested in the OP, and any reduction in punishment is in the hands of the courts when passing sentence (unlike some other jurisdictions, I believe). | There actually is a practical effect to a "not proven" v. "not guilty" verdict in Scotland, but it is mostly sociological or social in nature rather than legal. If your question is, are there future legal concerns, than no. Not proven is, to be sure, an acquittal. However, it is an acquittal that the tells the public something important: that the trier(s) of fact thought the person likely guilty. That's a fairly substantial distinction. In Scotland, a criminal case may be decided either "in solemn procedure", which is simply the Scot term for a jury trial v. "in summary" or in "summary procedure" which is the U.S. equivalent of a bench trial. The difference between the two (and the divergence from the U.S. procedural vehicle) is that for lesser crimes the accused doesn't have an automatic right of a jury trial for any criminal matter. In some ways this lesser included makes up for the fact that the Scottish accused is without absolute right to choose jury or bench trial, which in the U.S. can be very meaningful from a tactical perspective. Think of how important the make-up and emotional proclivities of juries are to both convictions and acquittals. A bench trial can be beneficial to the truly unlikable defendant, or in especially brutal crimes, where juries may convict out of fear or sympathy for the victim, even if the case is weak. At the same time, they may nullify the conviction for the sympathetic defendant. Juries are notoriously emotional and bias driven. Being able to choose a bench trial where the judge will follow the evidence and avoid the emotional response of a jury can be invaluable. Just as a sympathetic defendant can appeal to the emotions of the jury for acquittal or jury nullification, on the opposite spectrum. In Scotland, lesser crimes are always (with limited exclusions) tried by a judge, while more serious allegations always (again w/ limited exclusions) get a jury trial, automatically. The defendant does not choose the type of trial he is afforded. Hence, a defense or a prosecution cannot fiddle with the balance of proof based on emotion or lack there of. They get what they get. There are various rules procedurally that differ in comparison, but since this isn't the question that is the general rule and should suffice for background. Also hugely important is the fact that in Scotland, jurors decide a case by majority vote (like a civil trial in the U.S.); hence, there are no hung juries and they don't need a consensus. So, one way or another the verdict will be given in a Scottish criminal action. Scots also get comparatively huge juries to any other country (15 jurors) and they only need 8 in agreement to reach a verdict. Tactically, the "not proven" is a lesser included verdict (like U.S. uses lesser included charges in cases that are weaker for the prosecution). This lesser included finding can be used by choice when the Prosecution has a sympathetic defendant or when the defendant is probably guilty or unlikable. If the jury thinks the defendant (called "accused") probably did the crime, but the prosecution has failed to prove the elements, they can/will issue a "not proven" verdict. This sends a big message. This, again, is typically only reserved for those cases when there is strong but not conclusive proof that someone committed a crime. They don't want to profess their innocence with a not guilty verdict, so they are still acquitted, but with he stigma of the "not proven" verdict attached. Some estimates have from 1/5 to a full 1/3 of all acquittal verdicts by Scottish juries as "not proven" as opposed to "not guilty". Not proven can also be used by judges in the bench trial (summary procedure), however it's much less common. The proportion of 'not proven" acquittals in general is higher in the more severe cases; but so then are the proportion of acquittals versus convictions. These would likely be hung juries in the U.S.. Both in the "solemn" and the "summary" acquittals, not proven is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally or even factually convinced that the accused is guilty, but do not find the proofs sufficient for a conviction under the elements of the crime on the jury instruction/verdict form. I look at this as similar to the adage oft used in the U.S., which is an acquittal, despite the fact that the verdict is termed "not guilty" does by no means indicate the person is in fact "not guilty", it just means the prosecution couldn't prove its case. Sociologists in the U.S., as well as legal scholars, have studied the phenomenon, and it appears that most not guilty verdicts in fact let go a guilty person. This can be intuited by the evidence the jury never saw, either by suppression from bad searches, by the exclusion of witness testimony due to procedural rules like hearsay, privilege, etc., and other forms of keeping relevant evidence from the jury to protect the rights of the accused. But in the U.S. the person can go forth and say, "Hey, I was proven not guilty!" Scotland also has another interesting rule of criminal procedure, whereby a criminal can't be convicted without corroborated evidence. What this means is that if all the prosecution has is the victim witness, by way of proof, testifying, and no physical or corroboration testimony, Scottish law requires acquittal, but often will be so by the verdict "not proven". This is huge, if you think about it. Use, for example, a rape trial. A woman testifies, saying that Joe Schmoe climbed through her window and raped her. She knows Joe - he's her neighbor. Nobody saw him climb in. But she knows it's him. He leaves no physical evidence, having shaved his entire body and used appropriate protection (gloves, condemn, etc.). She has a rape kit done. Rape is obvious, but the only proof is her testimony. Joe goes free. But in Scotland, he goes free with a stigma attached. He's found "not proven" rather than "not guilty". I think this corroboration rule has a lot to do with why this verdict system still exists. In the U.S. the trier of fact would weigh the testimony and decide if one person was substantially more believable than the other, and a verdict would issue. That is a substantial difference, procedurally. Since Scotland doesn't have the hung jury because there is no consensus required they use the "not proven" in the same way a U.S. jury uses the hung jury when one or more jurors thinks the prosecution didn't prove their case but it's fairly clear the defendant is, in fact guilty. Then, you will often get a "hold out" juror, and since the U.S. requires a unanimous verdict, the hold out hangs the jury. It's sort of the opposite of jury nullification. The person knows that the evidence fell short, but their conscience can't reconcile letting the person go free, so they will vote guilty to hang the jury, almost ensuring the prosecution gets another shot. There has been a lot of debate about this three verdict system in comparative law circles, with many legal scholars saying it's antiquated. But I think it serves an important purpose. It carries the stigma of likely guilt for those people who probably committed the crime but got off. Further, the hung jury cost tax payers millions of dollars in the U.S., and this is often the side effect of people not wanting there to be absolutely no recognition of the fact that the accused probably committed (especially serious) crime(s). The Scots, on the other hand, have found away to accomplish this without the cost and emotional toll multiple trials takes on all the players involved, from witnesses and victims, their families, the accused, and even the lawyers and the prosecutions, who have to put in all the work of a trial just to start anew. Here is a really good scholarly article that deals with this interesting phenomenon not seen in (I don't believe) any other country: https://journals.iupui.edu/index.php/iiclr/article/viewFile/17848/18019 | It is definitely illegal in Russia as well, but the police will do nothing. Previous activity of this group included forcefully attacking people who tried to speak to a girl who disliked it and handling over such people to police to get fined "for hooliganism". Usual practice in Russia is to beat the people whom the random girls around dislike. This group stepped a bit further, involving police. They use illegal or questionable methods, definitely. But they use them in a manner that people would be unlikely to complain to police because they themselves either did something illegal or public opinion is not on their side. The police usually will do nothing even with much more serious violations, like beating somebody. | No, it is not illegal to use the symbol of the federal government for your own personal use as it is a public domain symbol. However, the USMC will frown upon it. Marines have a sort of warrior culture ethos to them, when compared to the other branches of the U.S. military and a strong culture among those who served. Among Marine culture "there is no such thing as a former Marine"... that is, once you enter the service, you are a marine even if you retire (a former Marine is usually someone who was dishonorably discharged OR committed an action that would have gotten him/her discharged had they not retired). They do not take kindly to Stolen Valor (pretending or seeming to pretend you served when you did not). While this is legal to do per SCOTUS rule, it's not considered advisable. Most of the US military have dim views of Stolen Valor and will react very negatively. And seeing as how the Marines like to boast in song that they Guard Heaven for God upon Death, these are not enemies you would like to make. Tread extremely cautiously while doing this. | Let's deal with the somewhat misguided notion of "public space": what it means and what it doesn't: "publicly owned" is not equivalent to "public space" - No 10 Downing Street is "publicly owned"; it is not "public space". "privately owned" can be "public space" - the publically accessible parts of shopping malls are privately owned public spaces. "public space" does not mean you have unconditional access. Access may be limited or subject to restrictions placed on it by whoever has lawful authority over it. For example, the aforementioned shopping mall is not public when the mall is closed, roads may be closed for maintenance, street festivities or emergencies etc. So, people with legal authority over the space can restrict or ban your access if, for example, you repeatedly flaunt the rules that they impose on the space. Their private security can request that you leave. If you refuse, you are trespassing and subject to arrest, either by security as a citizens arrest or by the police. |
Is writing articles by fixing Google Translate Copyright Infringement? I am currently looking for documentation for software in a non-English language, but there is only documentation on the software in English. In order to help other non-English speakers, I decided to check out how google translate transfers the documentation to a language I know. It turns out, it does a really good job except for some minor mistakes. I'm thinking of making a site where I copy-paste this google translated documentation and fix up the errors in the non-English language. Would this be illegal under copyright law? technically I didn't copy anything because I translated a page using google translate, then fixed up the words so the meaning is more clear. So technically I am re-writing some words, and the words are not from the original source but are just from applying google translate to a page. For example, I originally have this online documentation:https://cohesiondocs.acquia.com/6.1/tutorials/using-acquia-cohesion-existing-website then I use the google translate chrome extension to translate the page: Some of the words are wrong so I fix them up and make a post on my own website. Would it be legal If I say "originally translated from this site" or just list the site as a reference? I am editing the translated text to fix the wording but the meaning and the content are essentially the same. Additionally, I'm not able to find the copyright documentation for the site link I provided above. Could someone find it and link it in their answer, and interpret how the copyright text answers my question? Essentially, I could translate the whole documentation by myself to avoid this problem. However, that's quite tedious and is much easier if I use the automated tool that is Google Translate, then do a Quality Check and fix up the errors. If copy-pasting the google translate is illegal, then exactly how much must I edit, move around sentences, change words, and such until the text is no longer plagiarized? Is this plagiarism or copyright infringement? where can I check the copyright for the above link? It would really help to get some feedback and some things to watch out for. The thing is, even if I do write information originally, it ends up really similar to the original document because it's mainly just a step-by-step guide to doing things (which don't have much room to be changed). So is it more about the mode in which the new document is created, rather than how similar the actual document is to the reference? If I write my own step-by-step guide on how to use some software, even if it is very similar to the original, it's totally legal? So many how-to guides are similar out there. | A translation is a devivative work - the copyright owner has the exclusive right to these So, yes, translation is prima facie copyright infringement. Strictly speaking, if you translate it, it's a derivative work because you exercised creativity in making the translation; what Google translate does is not a derivative work, it's a copy because there is no creativity. Either way, only the copyright owner can do (or authorise) this. Whether it's legal or not depends on if what you are doing falls within one of the exceptions to the applicable copyright law such as fair use or fair dealing. Attributing the original author does not, of itself, allow translation. Additionally, I'm not able to find the copyright documentation for the site link I provided above. What is "copyright documentation"? Copyright exists the moment a work is created and no further documentation is required. Essentially, I could translate the whole documentation by myself to avoid this problem. No, you can't - see above. If copy-pasting the google translate is illegal, then exactly how much must I edit, move around sentences, change words, and such until the text is no longer plagiarized? All of it. If you were, based on your own knowledge of the software, to write a manual without any copying o the existing manual, that would not be copyright infringement. Is this plagiarism or copyright infringement? It's copyright infringement - plagiarism is an academic misconduct issue not a legal one. where can I check the copyright for the above link? The site you linked has "Copyright © 2020 Acquia, Inc. All Rights Reserved" in the bottom left corner which identifies the copyright holder, the date and prohibits all copying ("all rights reserved"). This isn't necessary but it is helpful. If you really want to do this, contact Acquia, Inc and ask for permission. | The first question is whose law you are concerned with, since in principle you might have violated copyright law in any country, and might be sued under the laws of multiple countries. The US has a concept of "fair use" which is notoriously difficult to apply. When you are sued in the US, you can defend against the allegation by arguing certain things: telegraphically, this includes purpose and character of use, nature of the work, substantiality in relation to the whole, and effect on market. Plus there is a 5th factor to be considered, transformativeness. The court then weighs these factors to decide if the use is "fair". By reading existing case law on the topic (conveniently available from the US Copyright office) you might develop a fact-based opinion of the risk: you would be vastly better off hiring an attorney who specializes in US copyright law to do an analysis for you. Do not hire a programmer to give you legal advice (do not hire an attorney to debug code). You would "fail" on the test of substantiality in that you are copying a highly substantial portion of the original work(s). You would "win" on nature of use (research especially non-profit and commentary are the underlying purposes that drive fair use law). It's not clear how you would fare w.r.t. nature of the work, which is intended to distinguish the extremes "news report" and "literature and artistic work" where copying news is at the fair use end of the spectrum. It is not clear how you would fare on "effect on market", but probably not so badly: are you avoiding some licensing fee? Coupled with the tranformativeness consideration, you are most likely having no effect on the market, since the product that you will distribute is not the original work, but a scientific conclusion about the work. Germany has different laws, and this article would be relevant if you cared about Germany. There was a change in the law that expanded the analog of fair use pertaining to research use. That law allows 15 percent of a work to be reproduced, distributed and made available to the public for the purpose of non-commercial scientific research. That, b.t.w., does not refer to what you are planning to do (unless you also publish quotes); for personal scientific research you may reproduce up to 75 percent. Since this is a new law only a year old, you could become part of the cutting edge in testing the limits of the law. So the standard disclaimer applies: ask your attorney. But note section 60d of the law which legalized data mining, and is squarely on point: (1) In order to enable the automatic analysis of large numbers of works (source material) for scientific research, it shall be permissible to reproduce the source material, including automatically and systematically, in order to create, particularly by means of normalisation, structuring and categorisation, a corpus which can be analysed and to make the corpus available to the public for a specifically limited circle of persons for their joint scientific research, as well as to individual third persons for the purpose of monitoring the quality of scientific research. In such cases, the user may only pursue non-commercial purposes. (2) If database works are used pursuant to subsection (1), this shall constitute customary use in accordance with section 55a, first sentence. If insubstantial parts of databases are used pursuant to subsection (1), this shall be deemed consistent with the normal utilisation of the database and with the legitimate interests of the producer of the database within the meaning of section 87b (1), second sentence, and section 87e. (3) Once the research work has been completed, the corpus and the reproductions of the source material shall be deleted; they may no longer be made available to the public. It shall, however, be permissible to transmit the corpus and the reproductions of the source material to the institutions referred to in sections 60e and 60f for the purpose of long-term storage. | In the United States, the case law on framing as copyright infringement is fairly scarce and somewhat conflicting. Consider first the 2007 Ninth Circuit Appeals ruling in Perfect 10 vs. Amazon.com. Google included framed images on their site. Google did not have the right to display these image works, but the ruling says ultimately that they did not display the works (emphasis mine): Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Perfect 10 argues that Google displays a copy of the fullsize images by framing the full-size images, which gives the impression that Google is showing the image within a single Google webpage. While in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion. Note that this second paragraph highlights that iframe linking may not be a copyright violation, but it may be illegal for other reasons, e.g., trademark violation, by confusing the origin of the framed content. This ruling appears to be in contradiction to the 1998 district court case Futuredontics Inc. v. Applied Anagramic Inc., which found that framing creates a derivative work. The most striking difference from the Perfect 10 case is in the following passage (emphasis mine): Defendants primarily rely on Louis Galoob Toys, Inc. v. Nintendo of America, Inc. [...]. In that case, the Ninth Circuit held that a Game Genie which merely enhances audiovisual displays which originate in Nintendo game cartridges does not constitute a derivative work because... it does "not incorporate a portion of a copyrighted work in some concrete or permanent form." Id. at 968 (emphasis added). The Court also noted that the Game Genie could not duplicate or recast a Nintendo game's output. Galoob did distinguish Mirage and noted that the Mirage decision would have been different had the plaintiff "distributed lenses that merely [*10] enabled users to view several art works simultaneously." Id. Nevertheless, Galoob... is distinguishable from the instant case. Galoob does not foreclose Plaintiff from establishing that AAI's web page, incorporates Futuredontic's web page in some "concrete or permanent form" or that AAI's framed link duplicates or recasts Plaintiff's web page. There appears to be a fundamental disagreement between these two cases over whether a webpage that includes a link actually "displays" the linked work. The Perfect 10 ruling viewed the page as HTML instructions that were only related to linked works insofar as those instructions could cause a user's browser to render framed content from a copyright holder different from the author of the HTML page. By contrast, the Futuredonics case considered the intended rendered output of a browser as a derivative work that includes the framed page in a "concrete or permanent form" and that "duplicates" the framed page. I'm not sure how to reconcile these two cases. Perfect 10 is more recent and from a higher court, but I'm insufficiently skilled in law to determine if and how that counts for anything. It's also possible that facts of the two cases are sufficiently different that the different rulings could be reconciled and both remain true simultaneously. Now that we've considered the case law, if you will indulge me in a moment of armchair speculation, let us consider an interesting hypothetical. Suppose I am the owner of apsillers.com. I host an HTML page on my site at http://apsillers.com/my_favorite_stories.html. My my_favorite_stories.html page frames a public domain resource at http://example.com/PD_Story.html. (I am not the owner of example.com.) Surely, we can agree that this is not copyright infringement. At a later time, the owner of example.com changes the text at http://example.com/PD_Story.htmlto include copyrighted content whose use by me would constitute infringement. My my_favorite_stories.html page remain totally unaltered. Does my_favorite_stories.html now violate copyright? The Perfect 10 ruling says no, because my_favorite_stories.html is only instructions. The Futuredontics ruling would appear to say yes, because it considers the final rendered output of the HTML, which now suddenly includes infringing content. It seems powerfully counterintuitive that the infringing status of my written work (my_favorite_stories.html) should change, dependent on the copyright status of a linked resource, when the content of my written work has remained totally unaltered. Perhaps you might argue that my case is different because I did not intend at the time I wrote my HTML page to infringe copyright. However, intent is irrelevant in making the initial yes/no determination of infringement (but may grant me a lesser punishment, as it would be innocent infringement.) | 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. | It would be terribly risky for you to simply link another company's terms of service. What if they take their server down? What if they change their terms? You would not even know when exactly the changes were made. Copying their terms means you might run into copyright issues on the text. Either pay a lawyer to write your ToS for you, or see if you can find something in the public domain. | I'm not sure this would be a copyright violation. 17 USC 117 says: (a)Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner... Due to the shutdown of the license server, it is impossible to use the program without an adaptation. It is therefore an "essential step in the utilization of the computer program", and not infringing, in my opinion. | See this working paper by Silvia Ferreri for an excellent write-up of this issue. The key point is that because each linguistic version of legislation is equally authentic, none can be taken as the authentic version. The court then resolves this by applying two principles: comparing the linguistic versions and giving deference to legislative intent. This is necessarily a case-by-case analysis. The paper calls attention to Case C‑445/09 arising from the Netherlands, where 9 different linguistic versions are compared and shows that the straightforward Dutch reading of the legislation in question isn't compatible with the other linguistic versions or legislative intent. In paragraph 25, the decision also contains a concise summary of the general principle of interpreting laws in multiple languages: According to settled case-law, the need for uniform application and, accordingly, for uniform interpretation of an EU measure makes it impossible to consider one version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim which the latter seeks to achieve, in the light, in particular, of the versions in all languages (see, inter alia, Case 29/69 Stauder [1969] ECR 419, paragraph 3; Joined Cases C‑261/08 and C‑348/08 Zurita García and Choque Cabrera [2009] ECR I‑10143, paragraph 54; and Case C‑473/08 Eulitz [2010] ECR I‑0000, paragraph 22). | You are in breach of Copyright. Plain and simple. Certain websites allow you to use the website content as long as a link is made, but the website must clearly state that. You may also use a tiny portion of the content if it falls under Fair Use, where "Fair Use" does not mean "I want to". The best thing to do is not to do it. You can't copy anybody's work without consent. If you're thinking about Google specifically then they offer multiple APIs so that you can use their content in a wide variety of ways. |
Does a hyperlink to a privacy policy have to be available after the user agrees? A website that deals with personal user data is legally bound by CCPA Privacy Rights and GDPR Data Protection Rights. The user must agree to the privacy policy before the website has consent to share personal information with any third parties. The user must have access to the privacy policy to agree to it. After that, I am not sure where on the website is legally required to provide a link to the privacy policy, if at all. Question: Is a website required to provide a link to the privacy policy after the user has agreed to it? | gdpr The obligation to provide a privacy policy stems from GDPR Articles 13 and 14. When the information has to be provided depends on when personal data is obtained. Information under Art 13 (data obtained directly from the data subject) must be provided at the time when the personal data is being obtained. Since most websites will obtain personal data pretty much continuously, they will likely have to keep this information available continuously as well. Information under Art 14 (data obtained from other sources) must be provided within a reasonable time after obtaining the information, but at the latest when the data subject is contacted. So this depends very much on when data is obtained, and whether personal data is obtained directly from the data subject. E.g. a website generally obtains some personal data directly from the data subject every time a user visits the page, thus it will likely have to keep a minimal privacy policy available all the time, for all visitors (whether registered or not). In contrast, for individual instances of personal data processing, it may be sufficient to provide the information only once. For example, if we ask a user to enter information to enter a raffle, the privacy policy regarding the raffle might only have to be shown in context of the form where the user can enter data. However, all such approaches stink. Doing the bare minimum that's explicitly required is an easy way to run afoul of more foundational GDPR principles, e.g. the Art 5(1)(a) requirement that all data processing must be transparent (compare also Art 12(1)), and the Art 5(2) accountability principle: the data controller must be able to demonstrate how what they're doing is compliant. The Art 13 and 14 time frames are the latest point in time at which this information has to be actively provided to the user (compare also the guidelines on transparency WP260). But it would be entirely possible for a court to argue that the transparency principle implies that all such information must be available to the user for the duration of all related processing activities, possibly both before and after the data subject was explicitly informed. The WP260 document also emphasizes that the data controller must take the reasonable expectations of the users into account, and most users expect a “privacy policy” link in the footer of every page. As a more general point, the GDPR never requires that data subjects agree to a privacy policy. A privacy policy is largely unidirectional information, not a contract. Under some circumstances, the data controller may rely on consent as a legal bases for processing, and will then have to obtain consent from the data subject. In the course of this, it is necessary to provide information about the specific processing activities for which consent is being asked. Usually, this is done by a short summary with key information, and a link to the privacy policy for the full details (a layered privacy notice, compare the WP260 document and the EDBP guidelines on consent 05/2020). But valid consent can only be obtained for specific processing activities, not for a bundle of processing activities or a privacy policy in its entirety. | HIPAA seems comparable but only applies to medical data, but is there anything more general than that? Not really, at least at the national level. There is no comprehensive national regulation of data privacy in the United States. There are regulations related to health information (HIPAA), to educational records, to tax information, to census information, credit reporting agencies, and to banking records (as well, of course, as to national security information). There are also largely consistent restrictions at the state level related to the juvenile justice process. But data privacy is not a subject of general regulation in the U.S. Instead, the data privacy regulations of the U.S. consist of a patchwork of fragmentary state and federal laws and regulations, superimposed on a significant and not entirely consistent or well developed body of common law precedents such as the privacy torts set forth in the Restatement (Second) of Torts, which some states have adopted fully, some states have rejected almost completely, and some states have adopted in part or with significant modifications. The U.S. Constitutional law of the First Amendment also heavily colors how other legal limitations and authorizations are construed and drafted, because the right to distribute truthful information without restriction has long been considered one of the core protections of the First Amendment, even in the much less vigorously protected area of commercial speech. Some states have more general regulations, and the most important of these is California, both because it is a large and economically significant state, and because it is the home to many of the leading U.S. technology companies, many of which expressly adopt of the law of the State of California in choice of law clauses in their terms of service and contracts. The California law most similar to the GDPR is the California Consumer Privacy Act of 2018 (CCPA) which gives consumers rights with respect to the use of the personal information that businesses collect about them and the CCPA regulations that provide guidance on how to implement the law. The website of the State of California's attorney general provides some answers to frequently asked questions about this law. | Consent in the GDPR sense? No. Consent in the more general sense of “agreement”? Sure. Under the GDPR, consent is only one of many legal bases for processing personal data. Consent requires an unambiguous indication of the data subject's wishes through a clear statement or affirmative action. Thus, consent cannot be “hidden” in another document – it would be ambiguous whether the data subject just wanted to agree to boilerplate terms of service or specifically consent to a particular purpose of processing. Indeed, Art 7(2) GDPR explicitly requires that “the request for consent shall be presented in a manner which is clearly distinguishable from the other matters”. Another legal basis is Art 6(1)(f) legitimate interest. A legitimate interest requires some interest that outweighs the data subject's rights and interests. This balancing test must consider whether the data subject can reasonably expect the processing to occur, given the data subject's relationship with the data controller. I would argue that an event venue does have a legitimate interest to film and photograph events, and that this interest outweighs the data subject's rights and interests at least for larger shots, but not necessarily for close-ups, portraits, etc. The event participants can reasonably expect the audience to be filmed and photographed. Indeed, the linked privacy policy (linked just after the part that you quoted) is very thorough and explains in detail what is happening. The table starting on page 9 describes the purposes of processing, the data being used for that purpose, and the legal basis for that purpose. Here, the relevant entry is: Purpose: Photographs of crowds at our festivals and/or events Type of data: (a) Identity Legal basis: (a) Necessary for our legitimate interests (to capture footage of artists performing at our festivals and events which feature crowd or to record images of our festivals and events for showreel and marketing purposes) This means: they are not asking for consent in the GDPR sense. They are relying on a “legitimate interest” instead. They have to inform you in advance about the processing of personal data – which they evidently did by providing the privacy notice – but they don't have to ask you. So what is that consent about then? The consent you quoted is more about personality rights: you would consent to “being photographed, filmed and sound recorded as an audience without payment, and to [your] image being exploited in any and all media for any purpose at any time throughout the world”. This is essentially a model release. | Your title is not necessarily consistent with your example. Can a website demand acceptance of non-essential cookies to allow access? As you have found, GDPR prohibits conditioning the provision of service on consent to the processing of personal data. Cookie walls without alternative means of access are generally considered violations of the GDPR. Can a website demand acceptance of non-essential cookies to allow free access? The situation of a "consent or pay" scheme (or "cookie paywalls") is more uncertain and has not been clearly settled at the EU level. There are data protection authorities that do not consider such scheme necessarily a GDPR violation (Austria, France) if a reasonable alternative access, without requiring non-essential cookies, is provided. For what it is worth, the French data protection authority (CNIL) held initially that all cookie walls are illegal, but on appeal from publishers and advertisers, the French supreme administrative court annulled CNIL's initial guidelines for being too absolute. German and Italian authorities are still examining the validity of such scheme. More reading: Consent or Pay: Privacy Considerations with Cookiewall-Paywall Hybrid Solution, https://securiti.ai/blog/cookie-paywall/ Is the use of a cookie wall allowed in European Countries, https://www.iubenda.com/en/help/24487-cookie-walls-gdpr | (Assuming the jurisdiction is the US.) Your question I was wondering whether there are any limitations on using photos of private individuals on websites. is the least of your potential problems. Photos of the public taken in public are mostly legal to use and publish, and you own the copyright on the photo, and generally don't need a model release. But your plan of posting the photo with accompanying information about (alleged) fraud: There's a fraud conducting business in my state and I want to create a website that warns others of his fraudulent practices. is potentially legally problematic. As phoog indicates in his comment, you need to be aware of defamation, both at the federal level and among states, as some have criminalized defamation (Wikipedia). Libel is the publication of provably false facts by one person about another person. For a full outline of defamation (libel and slander, and including private and public figures), see Libel and Slander | Nolo.com. What you want to do is publish "facts" about this alleged fraud on the website with a photo of the individual, linking the fraud allegations to them. That is potentially libelous. The facts of the fraud may be provably true, or they may be provably false; that remains to be seen. But the facts don't matter when considering what actions the person can take against you if you publish such information on your website. If this business and the individual(s) feel they are not committing fraud, they can sue you for libel in civil court, alleging that you have damaged their reputation and impacted their business by publishing those facts on your website with the photo identifying the person and their business. If they take legal action, and you can prove the business and the individual(s) are committing fraud with provable facts - hard evidence of fraud, such as legal documents and court judgments - than you should (no guarantees) be able to successfully defend yourself in a libel suit brought against you by that person. Even if the business and the individual(s) are aware of facts that prove their fraud, and know they will probably not prevail in court, they can still take you to court, and it will cost you whatever time and money it takes to defend yourself. My responses above concern what legal actions the alleged could take against you if you published the website with the photo and information about the alleged fraud. No one here is advising you to put up the website with the photo and the "facts" as you see them, even if you have hard proof of the facts of the fraud; you should find legal representation before taking any action with the website. And, no one here is advising you to open any legal action against the person; that's your choice in terms of determining your case and if you can show actual harm that was caused by the alleged fraud by the individual, and you should find legal representation before taking any action. | IANAL. (1) GDPR is certainly relevant. (2) This is certainly "personal data" under the definition in GDPR article 4. (3) Maintaining this data is probably lawful under article 6 sections 1(a) (consent) - provided that the Terms and Conditions of the site make clear that the user by signing up is consenting to this information being held (3) There is certainly an obligation under article 14 to disclose that the information exists, and to say how it used. (4) Article 15 says that data subjects are entitled to see the information and know what recipients or categories of recipient have access to the information (I don't know whether it's enough to just say "moderators", or whether the moderators need to be identified). (5) I can't see any reasons why the obligations under articles 16, 17, and 18 regarding rectification, erasure, and restriction of processing aren't relevant. This is exactly the kind of situation that GDPR is designed to address. If you're restricting the service available to particular users based on a record of their behaviour or on judgements made by moderators, then they absolutely have a right to know, and a right of redress. | Is there any sources of information where extraction of data from a closed source application and provided to a data subject is further defined? No, the GDPR is based on "general principles" and does not concern itself with implementation details for such matters. It's possible there's EU case law on this, but I can't find any. Am I within my rights to insist on this, even if to comply they would have to do some software development? Yes you can demand it, but they don't have to comply with your demand. The information only has to be provided in a "concise, intelligible and easily accessible form, using clear and plain language." and they only have to provide the information electronically where "reasonably practical" to do so, and they only have to take "reasonable steps" to do all this per Section 52 of the Data Protection Act 2018 which implements GDPR into UK law. You can complain to the Information Commissioner's Office, and they will decide if Section 52 has been complied with or not. 52 Form of provision of information etc (1) The controller must take reasonable steps to ensure that any information that is required by this Chapter to be provided to the data subject is provided in a concise, intelligible and easily accessible form, using clear and plain language. (2) Subject to subsection (3), the information may be provided in any form, including electronic form. (3) Where information is provided in response to a request by the data subject under [the Right of access by the data subject], the controller must provide the information in the same form as the request where it is practicable to do so. | First of all, in a GDPR contest, the process described is not strong anonymization. It may be hard for an outsider to go from the stored record to any PII, it is much easier for an outsider to "single out" an individual. This means that given a known individual, one can determine whether that person is among those listed in the records, or can determine this to a significant degree of probability. For this only the algorithm and the rotating salts are needed, one need not break the hash. Note also that the GDPR specifies that if a person can be singled out with the assistance of the site operator the data is not considered anonymized. Thus this data needs a lawful basis under the GDPR, and the various other GDPR requirement all apply. However, even if the data were totally anonymized, and say just added to a count of users with this or that User Agent, the process of reading local data (including but not limited to cookies) itself requires informed consent, and so a cookie banner or other interaction with similar info under the e-Privacy directive (EPD). The EPD, being a directive and not a regulation, must be implemented by national laws, and the exact provisions in those laws may differ somewhat from country to country. But I believe that all of them require consent before any local data is read. |
Legal status of units of electric measure in the U.S From 1894 until 2006, the United States Code had a section that defined the units of electrical measure (i.e. the volt, the ampere, etc.; see the Appendix for details). These sections were repealed in 2007, and it seems they haven't been replaced by any other law or regulation. However, the act that repealed them said it did so on the basis of those sections being 'redundant and obsolete authority'. My question in a nutshell Suppose the year is 2002, and a utility company decides to change all its documents, contracts, etc. so that everything is expressed in e.g. statvolts and statamps. In 2002, 15 U.S.C. 223 and 224 might have been interpreted as saying that this company can't do that, and that a judge might order it to start using volts and amps. (See also this related question.) What about now? If the company tries to do business in statvolts and statamps now, is there any general federal regulation about units of electrical measure, presumably set by the Department of Commerce, that the company would be violating? Or are there now only activity-specific regulations? For example, it could be that while there is no general law about electric units like there existed until 2007, there is still a mass of regulations about e.g how a power plant is supposed to conduct this or that aspect of its business, and perhaps in those regulations there are many statements such as the contract should specify the output potential (in volts or kilovolts)…, etc. Is that what the legal status of the volt and the ampere is like—there is no longer one place that sets them as legal units once and for all, but rather they are simply matter-of-factly used in all particular regulations. One might say this would make them de facto legal units. So here is yet another way to summarize my question: post 2007, are the volt, the ampere etc. still formally—in some federal law or regulation—declared to be legal units in general, or are they now simply de facto legal units, because they are the units that federal laws and regulations in fact use? Discussion The U.S. and metric units in general The volt, the ampere, etc. are part of the SI system if units, and U.S. laws and regulations do have sections that deal with that system. But, as we will see, the mandate to actually use the SI units in general is rather weak. In 15 U.S.C.Ch. 6—Weights and measures and standard time there is the following: §204. Metric system authorized It shall be lawful throughout the United States of America to employ the weights and measures of the metric system; and no contract or dealing, or pleading in any court, shall be deemed invalid or liable to objection because the weights or measures expressed or referred to therein are weights or measures of the metric system. §205. Metric system defined The metric system of measurement shall be defined as the International System of Units as established in 1960, and subsequently maintained, by the General Conference of Weights and Measures, and as interpreted or modified for the United States by the Secretary of Commerce. Note that 15 U.S.C. 204—which has been on the books since 1866— only says that there can be no legal trouble arising from using the metric units; it doesn't require their use. The most that the federal reulations require (15 CFR 1170.3) is that each Federal agency, by a date certain and to the extent economically feasible by the end of the fiscal year 1992, use the metric system of measurement in its procurements, grants, and other business-related activities, except to the extent that such use is impractical or is likely to cause significant inefficiencies or loss of markets to United States firms, such as when foreign competitors are producting competing products in non-metric units. Obviously, it is fairly easy to conclude in most particular cases that such use would be 'impractical'. As a result, despite these regulations, the U.S. Government (not to mention U.S. society at large, which does not fall under the scope of this particular regulation) continues to use the U.S. customary units in a majority of areas of activity. All this to say, U.S. regulations as they concern the SI system of units in general are a very weak foundation on which to base any sort of mandate for the use of SI units of electric measure in everyday activity. Now, there used to be federal law that specifically addressed the units of electric measure: 15 U.S.C. 223 and 224 (see below). However, those sections were reapealed in 2007. So my question is about whether there is now, following the 2007 repeal of 15 U.S.C. 223 and 224, any fedear law or regulation that explicitly singles out the volt, the ampere, etc. as legal units of electric measure. My best guess as far as what is the current legal status of the volt etc. On the one hand, I would say that the units of electrical measure are currently whatever the National Institute of Standards and Technology (NIST, the relevant agency of the Department of Commerce) says they are. This would be kind of like how the yard and the pound are what NIST says they are; see e.g here (p. 5348) and here ("Deprecation of the United States (U.S.) Survey Foot"). Note that these are notices from the Federal Register. Therefore, if NIST had made any regulations about the volt and the ampere being in general the legal units of electric measure, I would also think that NIST would have published it in the Federal Register. However, so far, I haven't found anything. On the the other hand, even if NIST hasn't laid down any such regulation, it probably doesn't matter in practice (which might be why it hasn't). The thing is, unlike with the units of e.g. length and mass, there is no realistic alternative to using the SI units of electric meausre: the volt, the ampere, and the rest of it. There are no 'U.S. cutomary units of electricity', unless they are exactly the SI units. Only in specialized applications does anyone use the older Gaussian units, and even then only some of them. (For example, to measure magnetic induction, much of industry still uses the gauss rather than tesla, which is the appropriate SI unit. I don't think anyone actually uses the Gaussian units for potential and current, the statvolt and statampere.) In short, to my knowledge, everyone in practice uses the volt, the ampere, and the ohm (including their versions with the metric prefixes, of course: the kilovolt, the milliamp, etc.). Another consideration is that the standard electric units (the volt, the ampere, the ohm, etc.) are, by now, embedded in a mass of other regulation, concerning anything from fire safety (e.g. what kind of fuses and cables are required; here the voluntary National Electrical Code seems relevant) to lab certifications and electrical power-plant approval processes. My questions: Are my guesses correct? In particular, is it really true that, since 2007, there is no single place in U.S. laws and regulations (including e.g. notices in the Federal Register) that says that e.g. electric current is supposed to be measured in amps? More generally, what is the current legal situation with units of electric measure (the volt, the ampere, the ohm, etc.) in the United States? Also, what exactly did the lawmakers mean by 'repeal of redundant and obsolete authority' in the case of 15 U.S.C. 223 and 224? Another way to phrase my question Suppose the year is 2002, and a utility company decides to change all its documents, contracts, etc. so that everything is expressed in e.g. statvolts and statamps. In 2002, 15 U.S.C. 223 and 224 might have been interpreted as saying that this company can't do that,, and that a judge might order it to start using volts and amps. What about now? If the company tries to do business in statvolts and statamps now, is there any federal regulation, presumably set by the Department of Commerce, that the company would be violating? (Also, can one find out for sure if there is any such regulation?) Appendix: previous US laws On July 12, 1894, the US enacted An Act To define and establish the units of electrical measure (28 Stat. 101 and 102), which became 15 U.S.C. 221 and 222. The act stated that …from and after the passage of this Act the legal units of electrical measure in the United United States shall be as follows: First. The unit of resistance shall be what is known as the international ohm, which is substantially equal to one thousand million units of resistance of the centimeter-gram-second system of electro-magnetic units, and is represented by the resistance offered to an unvarying electric current by a column of mercury at the temperature of melting ice fourteen and four thousand five hundred and twenty-one ten-thousandths grams in mass, of a constant cross-sectional area, and of the length of one hundred and six and three-tenths centimeters. Second. The unit of current shall be what is known as the international ampere, which is one-tenth of the unit of current of the centimeter-gram-second system… and so on. The act proceded to define several additional units: electrical potential (the international volt), charge (international coulomb), capacitance (international farad), work (joule), power (watt), and inductance (henry). The prefix 'international' (as in, 'the international ohm') has to do with some complications that the definitions of units had to deal with at the time. These complications are not important for the present purposes, but can be read about here. The previous act was repealed when, on July 21, 1950, the US enacted An act to redefine the units and establish the standards of electrical and photometric measurements (64 Stat. 370), which became 15 U.S.C. 223 and 224. The Act stated that …from and after the date this Act is approved, the legal units of electrical and photometric measurement in the United States of America shall be those defined and established as provided in the following sections. SEC. 2. The unit of electrical resistance shall be the ohm, which is equal to one thousand million units of resistance of the centimeter-gram-second system of electromagnetic units. SEC. 3. The unit of electric current shall be the ampere … And so on. That became 15 U.S.C. 223, while the following became 15 U.S.C. 224: It shall be the duty of the Secretary of Commerce to establish the values of the primary electric and photometric units in absolute measure, and the legal values for these units shall be those represented by or derived from, national reference standards maintained by the Department of Commerce. Here 'maintained by the Department of Commerce' in effect means 'maintained by the National Bureau of Standards', which was later renamed to the National Institute of Standards and Technology (NIST) and which is an agency of the Department of Commerce. This Act was amended in 1963 to replace 'candle' by 'candela' (Pub. L. 88–165, Nov. 4, 1963, 77 Stat. 299). Sections 223 and 224 were part of U.S.C. until 2006 (see here and here). However, in 2007, they were repealed by the America COMPETES act, which became Pub. L. 110–69, title III, §3013(c)(2), Aug. 9, 2007, 121 Stat. 598 and which says the following: SEC. 3570. METRIC SYSTEM DEFINED. The metric system of measurement shall be defined as the International System of Units as established in 1960, and subsequently maintained, by the General Conference of Weights and Measures, and as interpreted or modified for the United States by the Secretary of Commerce. (2) REPEAL OF REDUNDANT AND OBSOLETE AUTHORITY.— The Act of July 21, 1950, entitled, ‘‘An Act To redefine the units and establish the standards of electrical and photometric measurements.’’ (15 U.S.C. 223 and 224) is hereby repealed. As a result, the relevant part of U.S.C. looks like this: SUBCHAPTER V—STANDARDS OF ELECTRICITY §§ 221, 222. Repealed. July 21, 1950, ch. 484, § 13,64 Stat. 370 Sections, act July 12, 1894, ch. 131, §§ 1, 2, 28 Stat. 101,102, related to units of electrical measure. §§ 223, 224. Repealed. Pub. L. 110–69, title III,§ 3013(c)(2), Aug. 9, 2007, 121 Stat. 598 Section 223, acts July 21, 1950, ch. 484, §§ 1–11, 64 Stat.369; Pub. L. 88–165, Nov. 4, 1963, 77 Stat. 299, related to units of electrical measure. Section 224, act July 21, 1950, ch. 484, § 12, 64 Stat. 370,related to establishment of values of primary electricand photometric units in absolute measure and legalvalues for those units. | Is that really so, though? Is there, since 2007, no single place in U.S. regulations (including e.g. the Federal Register) that says that e.g. electric current is supposed to be measured in amps? More generally, what is the current legal situation with units of electric measure (the volt, the ampere, the ohm, etc.) in the United States? These units are authorized for use by 15 USC 204, quoted in the question. The statute further authorizes the Secretary of Commerce to interpret or modify the standard, but it does not require it. In the absence of any such interpretation or modification, the provisions of the standard are authorized as they are. Also, what exactly did the lawmakers mean by 'repeal of redundant and obsolete authority' in the case of 15 U.S.C. 223 and 224? They meant that there was no need for those sections, which specifically authorized the use of certain metric-system measures, in light of the general authorization to use the entire metric system. | The first part is a matter of jurisdiction. I do not believe that simply using a cell phone with an Illinois number will give the Illinois courts jurisdiction, if you're standing in Wisconsin and calling a person in Wisconsin. Also, when you state that the call is recorded for ___ purposes, does that have any bearing on the actual use (e.g. they state it is for quality assurance, but instead they use it for marketing, legal, etc) The use can make a difference. There's an exemption in Illinois law if a business records if: the monitoring is used for the purpose of service quality control of marketing or opinion research or telephone solicitation, the education or training of employees or contractors engaged in marketing or opinion research or telephone solicitation, or internal research related to marketing or opinion research or telephone solicitation If they do not use it for these purposes, presumably the exemption would not apply. In addition: No communication or conversation or any part, portion, or aspect of the communication or conversation made, acquired, or obtained, directly or indirectly, under this exemption (j), may be, directly or indirectly, furnished to any law enforcement officer, agency, or official for any purpose or used in any inquiry or investigation, or used, directly or indirectly, in any administrative, judicial, or other proceeding, or divulged to any third party. | We have no way of knowing when this happened, but it is probably a fact, recorded some time in the past. Utility companies very frequently obtain a right-of-way (easement) which gives them certain rights to your property. Typically, this happened a long time ago when a previous owner agreed. As for gas pipelines, that typically includes "don't plant trees" restrictions. The easement is usually recorded in the county office where deeds are filed. The legal basis is generally "because you agreed, or some previous owner agreed". You can get a copy of the easement to see if "no trees" is actually part of the agreement. If yes, no point in arguing, if not, you could hire a lawyer if they are demanding that they are threatening you. They are allowed to be concerned and to ask you to cut trees regardless, but if it's not required by the terms of the easement, you can say "No, I'd rather keep my tree". | The 4th Amendment applies to administrative inspections. Per Camara v. Municipal Court 387 U.S. 523 (1967), there are some exceptions for tightly regulated industries, but you don't seem to be describing such a situation. If you object to a warrantless inspection, the inspectors would need to get a warrant to do those parts of the inspection that require getting on the curtilage of your property. Curtilage is the part of your property that is so intimately connected with the home that it treated the same for 4th Amendment purposes. Per United States v. Dunn 480 U.S. 294 (1987), a fence doesn't mean everything inside the fence is curtilage (but for a small, city dwelling, the fence is probably going to be considered the curtilage boundary). Not having a fence doesn't mean nothing is curtilage. As you say, even if you object to the warrantless inspection, they can probably do a lot of the inspection from outside your curtilage and avoid infringing your 4th Amendment rights. The inspectors may choose to return with an inspection warrant. An example statute describing an inspection warrant is California Code 1822.50: An inspection warrant is an order, in writing, in the name of the people, signed by a judge of a court of record, directed to a state or local official, commanding him to conduct any inspection required or authorized by state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning. | 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. | Good timing: I just got a new OBD II scanner yesterday. Since this might hit a wider audience, I'll take a foundation-first approach. Your vehicle is comprised of things like brakes, ABS, fuel injection, gear box. Nowadays, these parts are operated by electronic controllers. The physical path by which the controllers receive and transmit electronic signals is called a bus. (It performs the same function as the internal bus in your computer, which connects the CPU, memory, etc.) CAN is simply a protocol for how information travels on the bus. So it does all the things you'd imagine a protocol does (boring things like dictating message formats be 64 bits and exciting things like determining priority). Protocols are defined by standards. Prior to widespread implementation of CAN, there were other standards (four, I believe) used by various manufacturers. CAN is widespread, but it's important to note that it's only standard on lighter vehicles. 40 CFR 86.005-17(h)(3) Beginning with the 2008 model year and beyond, ISO 15765-4.3:2001 “Road Vehicles-Diagnostics on Controller Area Network (CAN)—Part 4: Requirements for emission-related systems”, (December 14, 2001) shall be the only acceptable protocol used for standardized on-board to off-board communications for vehicles below 8500 pounds. The statute goes on to discuss other standards for heavier vehicles. What's unique about CAN? It's faster, but more importantly, it's a protocol that doesn't require a central computer. All the controllers get all the messages. It's kind of like having a bunch of people in a room yelling things out: everyone hears everything. And that's what you want in a car. However, the messages have to be interpreted by the controllers themselves, and that requires a separate "higher-layer" protocol. Electronic components need CAN to function, and if you have a car with electronic components, you need CAN in order to make it run. On the other hand, a vehicle can run without OBD--it's just a nice secondary feature to help diagnose system performance (and problems). It obtains access to component information like speed, RPM, fuel trim, etc. Likewise, that pesky "check engine" light gets activated by a diagnostic code. CAN is not mandatory for OBD. OBD is designed to use a number of different standards, and CAN is one of those (remember, light vehicles makes beginning with 2008 use CAN, but OBD is in use in other types of vehicles, too). At it's heart, OBD II is just another protocol: it specifies message format and the connector's pinout. In the best teaching document I've seen on the CAN vs. OBD subject, Michael Wen mentions you can often deduce which signaling protocol is in use by looking at the pins in the connector (remember, CAN should be standard for light vehicles after 2008, but you might see one of the other four formats in older vehicles). How do OBD and CAN work together? OBD sends messages over the CAN bus (that is, the vehicle bus with the CAN protocol). OBD basically queries components by sending specially formatted messages via the CAN bus. The components respond via the CAN bus. That information goes either to a warning light on the dashboard or to a diagnostic scanner attached to the connector. | IANAL, and as @GeorgeBailey suggests, you should ask one. That said, some aspects of your question are directly addressable with what we know. Does US law states anything about this? Yes. Federally this falls under the Wiretap Act, 18 U.S.C. §2511. Workplace monitoring generally falls under either the "System Administrator Exception" or under Consent. In general, continuing past a banner constitutes consent. Does company policy enforcement with such a warning over ride the right to not be subject to surveillance? In general, yes. You don't need to use the companies network if you don't want to consent - and they don't need to hire you if you don't want to use their network. But it's their network, and their rules apply. There are some nuances, and courts have found that the wording of the notice has made a difference in some cases, but overall, if the systems are properly posted with banners, then the employer may capture communications. See the "Bannering and Consent" section of this article from cybertelecom.org, e.g.: Even if no clicking is required, a user who sees the banner before logging on to the network has received notice of the monitoring. By using the network in light of the notice, the user impliedly consents to monitoring pursuant to 18 U.S.C. § 2511(2)(c)-(d). Note that stored data is covered by different laws than communications. It's a nuance. Is it ethical to sniff all the data without giving any other warning than the logon banner? "Ethical" is a very different question than "Legal", and largely more subjective. Most employers require signed consent for monitoring as a condition of employment, and use banners thereafter. That is ethical by my definition, in that it meets or exceeds the requirements of the law, and does not mislead or use subterfuge. The tone of your question suggests you find it distasteful, and therefore probably it violates your personal code of ethics. | As user6726 notes in an answer, the page you link to derives from 26 USC 7701. However, it does not reproduce the text accurately. There, "United States person" is defined at section 7701(a)(30), and it notably lacks anything corresponding to "any other person that is not a foreign person." It's possible that that language is motivated by some court decision, but it's also possible that someone just added it for the sake of symmetry with the definition of "foreign person" without thinking about the logical paradox that it might create. Looking at section 7701, I don't see any explicit mention of US non-citizen nationals. It appears that such a person who does not live in one of the 50 states or the District of Columbia falls under the definition of nonresident alien at 7701(b)(1)(B) even though such a person is explicitly not an alien under the Immigration and Nationality Act. I do not see any regulations correcting this oversight, but I suppose that in practice such people are indeed treated as US citizens. I don't know enough about the classification of nonhuman legal persons as foreign or domestic to have any ideas about whether there are similar ambiguities there. |
Retroactive Child support across country lines Let's say the Family initially lived in Australia (NSW) in the mid-90s. After the divorce, the rate of child support was calculated and fixed. Sometime later the father (paying the child support) immigrated to the United States and earns an income considerably higher than the one on which the child support was based. The mother did not seek new orders in either the Australian or United States courts. The moment the child turned 18, the father ceased payments. The child is now in his late 20s and has completed an Australian undergraduate degree and is currently studying a masters degree (again in Australia). 2 Questions: Is it possible/feasible for the child to retroactively sue the father for the child-support that was not paid throughout the 90s and 2000s? Is it possible/feasible for the child to sue the father to get him to pay for his Australian university fees/debts which have accrued (and continue to accrue) over the 2010s? | Is it possible/feasible for the child to retroactively sue the father for the child-support that was not paid throughout the 90s and 2000s? No. Child support is owed to the custodian parent, not the child. If at all, your mother would have to sue. Chances are, your parents, had a child support agreement in place and as long as your father abided by the terms of this agreement, there is absolutely nothing to sue about. Is it possible/feasible for the child to sue the father to get him to pay for his Australian university fees/debts which have accrued (and continue to accrue) over the 2010s? No. There is no legal requirement for any parent (divorced or not) to pay for college education. Once you are a legal adult you are responsible for your own expenses and actions. That's what "adult" means. | It depends in part why you think he owes you money: is it about real estate in the US, it is about his role as executor or heir in an estate, does it relate to professional or commercial activity outside his official function? This is covered by the Vienna Convention on Diplomatic Relations Article 31. If so, you can sue him the regular way. Enforcement of a judgment can be a challenge, since he can't he held in contempt for ignoring the order, and the police can't enter the embassy to take property. A theoretical alternative would be to take the case to the local Archdiocese, but Canon 366 precludes that "the seat of a pontifical legation is exempt from the power of governance of the local ordinary unless it is a question of celebrating marriages", so taking your case to the Archdiocese of Washington is pointless. Consequently, I think the case would have to be presented to the Roman Rota. But from what I can tell, unless this situation is a violation of church law, you will fail to state a cognizable claim. | First, it is quite unlikely that a US court would take on the case. Someone will have more details, but for example in EU law if you move away from the place you last lived together, you can only file for divorce in the country where your partner is living (in this case, India). Annullment is a much more serious matter than divorce, so I doubt any American court would take this case: Annulment would mean that a US court would have to decide that an Indian registry office didn't do its job right. Second, A needs convincing evidence. Frankly, "masculine appearance" and "typical masculine voice" are just opinions and therefore not evidence. Even if the court were convinced that B has a "masculine appearance" that's not evidence for being a male. A has to show the evidence, and as half of us know and the other half learned in their biology lessons, there is some pretty convincing evidence that someone is a man which A didnt' mention. And I'd ask anyone not to edit this out, because it is quite essential to the case. B doesn't have to visit a doctor and get a statement that she is a woman (which would destroy any case immediately), because based on the available evidence, A will lose the case anyway. On the other hand, after that court case has finished, B can at any time (after appropriate waiting times according to US law) come to the USA and file for divorce. | if the child exchange time and locations are fixed, and the husband can no longer legally drive, does this effectively nullify his visitation rights? No. He can get a ride from someone or get an Uber or Lyft or Taxi or take a bus. The drop off location is near her house, not his, and even if public transportation were an option he would not be the type to use it. He's more the type that would ignore the suspension of his license and go pick up the kids in his car anyway. He is also the kind to try to attempt to manipulate the wife into doing what he wants regardless of what a court order says. Emotional abuse and manipulation were a big part of his game, but fortunately she has gotten much better at ignoring it. What he is inclined to do and why have nothing to do with whether or not it is legal. If he has his license revoked and attempts to pick up the children as always, are there any potential legal repercussions for her if she allows him to pick up the kids? Practically speaking, no, particularly in light of a court order to transfer custody. Theoretically, it is remotely possible, even though it is very unlikely. In theory, she could be held liable for negligent child neglect by allowing this to happen, particularly if the children were then harmed in an automobile accident. If he was visibly drunk or intoxicated at the time of the transfer, however, her risk of criminal liability would be considerable. Would there be any potential legal repercussions for her if she refuses to allow him to pick up the children himself with a suspended license/registration? Potentially, she could be held in contempt of court for refusing to follow a court order. Her better course would be to call the police when he arrived to report that he is driving with suspended license, to not transfer the children and wait until they arrive (seeking cover inside a home and advising the 911 operator again if the situation starts to escalate into a potentially violent situation), and to explain to the police that he is also attempting to endanger the children by trying to drive with them on a suspended license. There is a good chance that he would be arrested and that the police would leave her with the children. The police might, rather than arresting him, drive him home with the kids and tell him not to drive and cite him for driving with a suspended license. Then, she should make an emergency motion to the court, regardless of how it is resolved by the police, seeking permission to formally give her a right to refuse to transfer if he arrives unaccompanied with a suspended license. If he attempts to convince her to drop the kids off somewhere else (presumably at his house) due to the suspension of his license, are there any potential legal repercussions for her if she refuses? Probably not. This time he's not following the court order, not her. It would still be advisable for her to file an emergency motion with the court explaining the situation. | Is it legal? Yes. You can make just about any payment arrangements you like. You wouldn't be able to verify compliance, though, without some connection to the student's employer. The IRS won't tell you how much money a third party earned, or how much tax they paid, in a given year. Pretty sure they can't provide that info, which is why companies wanting to verify your income ask for copies of your tax returns rather than permission to get those returns. | Generally (at least in the US), you cannot file criminal charges unless you are a prosecutor. Criminal charges are brought by the state on behalf of society as a whole; the goal of criminal charges is not to help or compensate the victim, it's to punish the offender and benefit society. The victim will often obtain restitution payments, but they are pretty much bolted on to a procedure not focused on compensating the victim. For instance, if the AG decides to drop charges (which they can do at any point), the charges are dropped. Instead of picking one or the other, you can do both. After the criminal case, if you want, you can file in small claims. You can't collect double, but since they have totally different purposes you don't have to do one or the other. | From the legal perspective, the most important step is establishing legal paternity. IN Code 16-37-2-2.1 covers the process of establishing paternity via affidavit, which has to be executed in a prescribed and timely manner and with cooperation by both parties. Paternity can also be established by court action (very complex). With legal paternity established, then in terms of parental rights and responsibilities, it is immaterial that you are not married. If you don't live together, then the question of custody and visitation, and child support, would need to be resolved (with a lawyer involved). This article surveys the situation with Indiana Law w.r.t. unwed fathers (see especially section III), though most of it is about the situation where actual paternity is distinct from legal paternity. | The general rule is that the ability to have a valid divorce has nothing to do with where the marriage was entered into, or the citizenship of the parties. Usually, any jurisdiction with sufficient contacts with either member of the couple has jurisdiction to enter a divorce. Hence, generally, people get divorced in the place that they live. The problem in this scenario is step 5. I think that it is highly likely that the U.S. Embassy is simply wrong, unless there is some serious irregularity in step 4. An annulment after four years of marriage, as opposed to a divorce, is highly irregular and would not be allowed in the vast majority of jurisdictions. But, maybe there are facts and circumstances that make it otherwise. This fact pattern, while it on one hand sounds like a "for a friend" question based on real facts, also sounds like some important details that may be outcome determinative have been omitted. |
How does Equity get lost long before a bankruptcy case is filed? How's Judge David Jones correct? On May 26 2020, Hertz announced bankruptcy and its price dropped even more, from $2.83 to 0.59. Retail Traders Flout Legal Logic by Buying Up Bankrupt Stocks “No one ever loses equity in a bankruptcy case,” U.S. Bankruptcy Judge David Jones said during a status conference in the J.C. Penney case last month. “Equity gets lost long before the case is filed.” Under U.S. bankruptcy law, shareholders are last in line for any kind of payout -- behind the lawyers, lenders, and vendors -- making a recovery for shares unusual. The size and scope of payouts is usually determined by a so-called Chapter 11 plan, which creditors vote on and send to a federal judge for approval. Those plans often leave even high-ranking creditors getting less than they’re owed. | Because a company with positive equity isn't bankrupt Usually. The simple version Equity in accounting terms is a part of the Statement of Financial Position (previously called the Balance Sheet) and represents the value owned by the shareholders. It was called a Balance Sheet because it balances: Assets - Liabilities = Equity A bankrupt company is one that is unable to settle its debts meaning that its Liabilities (what it owes) are greater than its Assets (what it owns). Therefore equity is negative - the equity has been lost before the company files for bankruptcy. Since shareholders have limited liability, they do not have to contribute to pay the company's debts so their shareholding is worthless. Their shareholding can't be worth less than worthless so in that sense David Jones is right “No one ever loses equity in a bankruptcy case, Equity gets lost long before the case is filed.” It is the loss of the equity that caused the bankruptcy. The more complex version The Statement of Financial Position is a point in time measure of the liquidated value of the entity - that is, the value of the company if all assets were sold for their book value and all debts were settled for their book value. This isn't something that can actually happen for all sorts of reasons. A company that gets liquidated will often not realise the full value of its booked assets because these are accounting measures of value rather than sale under the hammer values at a liquidation auction. Further, businesses as going concerns have a different value than their book equity. An ongoing business will make profits (or losses) in the future and the expectation of these needs to be added (or subtracted) from the book equity. This is why a company with negative equity may still be worth operating and, conversely, why one with positive equity maybe should be closed. Also, businesses may have significant off-balance-sheet assets such as valuable IP and branding that was developed in house and therefore don't create bookable transactions. For example, there is no item in the Coca-cola balance sheet that represents the value of the brand. This is clearly an item of value that a) isn't on the balance sheet and b) only has value while someone is making cola and using that branding. Kodak, Blockbuster, Panamerican and Concorde were all once valuable brands that now only have nostalgia value. One final point is that it is quite possible for a business with positive equity to go bankrupt because bankruptcy can be triggered by insolvency. Insolvency is being unable to pay your debts as and when they fall due. An asset rich but cash poor organisation can be insolvent while still having positive equity. For example, a property developer may have a large portfolio of valuable property and owe a relatively small amount to contractors, however, if they can't come up with the cash to pay these debts they are insolvent and this can trigger bankruptcy. Many businesses and individuals may be insolvent and recover from it - they borrow money from a bank (or by delaying payments to creditors) or inject more funds into the business. It is usually only when a business is of borderline profitability that insolvency will push them into bankruptcy. | They recently took me to court (I am now 20) to have me start paying for the bill, under distress I signed paperwork stating that I'd start paying them, however I find this entire situation very aggravating. Short Answer You are almost surely screwed at this point and can't do anything but abide by the settlement that you agreed to when you signed the paperwork. Preface Regarding The Applicable Jurisdiction I am answering based upon the majority rules of law in U.S. states, because there is almost no other country in the world where you could end up in this financial situation due to universal healthcare systems that exist in most countries other than the United States. Also, this isn't an area of law with a great deal of state to state variation, although the law isn't exactly the same in every single U.S. state. The Minority Defense You quite possibly had a minority defense before you signed the paperwork. The minority defense is based upon an inability to give adequate consent to a contract. Whether the minority defense would have worked in this case, however, is a close call, because there are exceptions to the rule that would probably apply in this case. Settlement, Ratification and Duress The legal standard for "duress" in contract law usually means situations where there is literally a gun to your head or they're going to kill your dog or something like that, not the kind of economic pressure or persistent harassing collection efforts that I suspect you are referring to in this case. Of course, if they did steal your dog and threaten to kill it if you didn't sign the paperwork, then you really would have signed it under duress and you should probably both take legal action to repudiate that paperwork (because agreements entered into under duress are generally voidable, rather than void), and you should probably report the incident to the police as a crime. So, anyway, the paperwork you signed is probably enforceable, despite the pressure that they put on you to sign it. Once you sign a settlement agreement as an adult (which is almost surely what you did) you have ratified the agreement made when you were a minor and forfeit any way to fight it. You are stuck with what you agreed to at this point and there is nothing you can do about it short of going bankrupt. I would not recommend going bankrupt over a debts owed to a single medical provider unless that debt is so huge that ruining your credit for seven years and paying a bankruptcy lawyer is worth it to get out of this debt. For most twenty-year-olds facing debts for a few chiropractor treatments this would not make sense. Lesson learned: Talk to a lawyer before you sign paperwork, not afterwards, because once you've signed on the dotted line, there is usually little or nothing that a lawyer can do to help you at that point. Guarantors As a guarantor of the obligation to pay for your care, your mother would no doubt be on the hook in any case, whether or not you settled, and whether or not you went bankrupt. Unless the settlement agreement that you signed says otherwise, they can still attempt to collect the bill from her as well as from you. Of course, as you make payments towards the total balance due, the total balance due goes down. Your mother, as a guarantor, is only obligated to pay the portion of the bills that remain unpaid when they try to collect the debt from her. The Necessaries Exception To The Minority Defense Even though the minority defense might apply in this situation, most states recognize an exception to the minority defense when a purchase of "necessaries" is made by a minor. Bills for medical care would usually count as "necessaries", because you would have had no choice but to buy if you had been an adult anyway, so your lack of consent to pay isn't something that caused you material harm. Honestly, in the medical industry, an agreement in advance to pay a negotiated price is the exception rather than the norm. Often the providers themselves have no real clear idea what their patients are billed for their services, although chiropractors tend to be more informed about the financial arrangements than medical doctors in most cases. Void Contracts v. Voidable Contracts In any case, minority is a defense to a contractual obligation that would ordinarily only make the contract voidable, rather than void. In other words, a minor can repudiate a contract that is voidable on account of minority and successfully get out of it within a reasonable time of becoming an adult (or sooner while you are still a minor through a parent or guardian or next friend), but it is not automatically invalid. There is a good chance that a court would consider a two year delay in trying to repudiate the contractual obligation too long, even if it concluded that the necessaries doctrine did not apply because, for example, the court considered this to be elective, luxury care rather than medically necessary services. Unjust Enrichment Claims Also, in addition to suing for breach of contract, the chiropractor might be able to sue for quantum meruit. This legal theory is not based upon mutual consent the way a contract claim is, although this is sometimes called a "quasi-contract" or "implied contract" claim (it is also sometimes called a "restitution" or "unjust enrichment" claim). As a result, minority is not usually a defense to a quantum meruit claim. Instead, a quantum meruit claim is based upon preventing you from being unjustly enriched, (1) from benefits that you received, (2) that were not unwelcome, (3) from the efforts of someone else who did that work, (4) with a reasonable expectation of being compensated for the work, (5) in situations where there is no binding contract between the parties. (Different lawyers and different courts might break up these elements into more or fewer components, but the gist of the claim would be the same in pretty much any state.) In a quantum meruit case, damages are based upon the fair market value of the services rendered, rather than an agreement of the parties, since there was no mutually agreed price under a contract that they are seeking to enforce. Quantum meruit claims are frequently brought as a backup claim to a claim for breach of contract by failing to pay for services, in cases where the contract claim may be infirm for reasons such as minority. | Check your local law. In Washington, the chapter RCW 63.21 says what you are supposed to do. The first part of the law has apparently been satisfieds: Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claim the found property Then you need to get a signed appraisal stating current market value from a qualified person engaged in buying or selling the items, or by a district court judge (I have no idea where district court judges get their qualifications to appraise bricks), then within 7 days, report this to the cief LEO where the stuff was found (and surrender it, if requested). You also have to serve written notice upon that officer stating your to claim the property. The burden now shifts to the government, which must publish notices in a local newspaper at least weakly, for 2 weeks. The notice might be publishable in a no-cost venue, in case the publication cost is greater than the value of the stuff. If the owner appears and establishes ownership, that's the end of the finder's potential interest. If the owner does not show up, the property will be released to the finder once he has paid the government's publishing expenses plus $10, but if the goods are appraised at less than publishing cost, there is no fee. As a finder, you have 30 days after that 60 days to pay required costs, otherwise it goes to the government. There are some exceptions, things not subject to finders-keepers (crab pots, secured vessels, motor vehicles, unclaimed property in the hands of a bailee). If you do not comply with these requirements, you forfeit any right to the property and you are liable to the property owner for the value of the bricks. Under the definition of theft, you have a defense that The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable since you presumably intend to claim ownership of the bricks under the lost property statute. | If I read this correctly, (and more context would support this, but I don't have time to do research at the moment; I also don't have the book in question, so I'm only basing off of the provided snippet) then it appears two different (higher court) justices making rules, not only to guide their own judgements before them, but for reference for lower court justices to base their rulings against. Note that these two cases appear to have taken place about 3 decades apart, and in two different countries, albeit with related legal codes. The Purple is "identical" to the Green, because their wording is near enough identical between the two passages. I don't think "dumbness" or lack of distinguishably is implied. Rather McRae's rule is Conditions Green AND (logical "and") Condition Red, while the British rule is just Condition Green. The orange text suggests that, under the rule in Associated Japanese Bank Ltd v Credit du Nord SA, Condition Red need NOT be shown. I.e., you don't need to show that a party is responsible for convincing the other party of an unreasonable falsehood, to prevent the first party from using the doctrine of "common mistake". It also suggests that the rule from McRae does impose Condition Red. Essentially, the text is describing two different (non-exhaustive) tests for determining when the doctrine of "common mistake" can be invoked. | There needs to be some reduction to money or specific property. This has to happen either by some after the fact evaluation of the harm caused, or by an explicit or implicit liquidated damages provision in the agreement (e.g. if X doesn't happen, they entire property is forfeited, which implicitly imposes a liquidated damages amount equal to the value of the property in the event of a default). If the seizure of the entire collateral for a default wouldn't be a valid liquidated damages provision, then the deed of trust is invalid and wouldn't be enforced as written. I can't say that I have, in twenty-five years and in additional reading of case law and news reports, ever seen a deed of trust securing an obligation that isn't monetary or capable of being reduced to money. For example, if a deed of trust secured an obligation to appear in court, as is common in a bail bond situation, the amount of the deed of trust is reduced to money when the bond is forfeited by the court for failing to appear. Similarly, if a deed of trust secures an obligation to carry out a landscaping contract by mowing the lawns of everyone in a subdivision, the obligation would be reduced to money by determining the costs of having someone else do the job. The first example I found of a California performance deed of trust, while it is not completely obvious on the face of the instrument since it incorporated another contract by reference, likewise refers to obligations that can be reduced to a dollar amount at the time a default occurs, stating: This Deed of Trust is given for the purpose of securing payment and/or performance of the following (the “Secured Obligations”): (i) all present and future obligations of Trustor set forth in this Deed of Trust or in the Resale Restriction Agreement (including without limitation, Trustor’s obligation to convey the Property only to Eligible Purchasers at no more than the Adjusted Resale Price, which is capped at an Affordable Unit Cost (as such terms are defined in the Resale Restriction Agreement); (ii) all additional present and future obligations of Trustor, to Beneficiary under any other agreement or instrument acknowledged by Trustor (whether existing now or in the future) which states that it is or such obligations are, secured by this Deed of Trust; (iii) all modifications, supplements, amendments, renewals, and extensions of any of the foregoing, whether evidenced by new or additional documents; and (iv) reimbursement of all amounts advanced by or on behalf of Beneficiary to protect Beneficiary’s interests under this Deed of Trust. The statutory process for a deed of trust foreclosure in every state I have ever seen requires the amount of money secured by the deed of trust to be determined and assumes that there is a debt for a sum certain. | It is true that a shareholder who controls a majority of the votes can be quite powerful indeed. This is a somewhat murky area of the law, but in many cases, a majority shareholder has a fiduciary duty to do what is best for the corporation as a whole (not just the majority shareholder, but all shareholders), an obligation that logically parallels the obligation of the board of directors (which controls a corporation with much the same effect as a majority shareholder). In Delaware, where most large corporations are incorporated, a major shareholder or group of shareholders can have less than 50% of the vote can still be considered de facto majority shareholder if they have influence over the rest of the shareholders. Majority shareholders, either de jure or de facto, are required to act only with "entire fairness" to all the shareholders, and courts may invalidate or otherwise grant relief on transactions made by majority shareholders that are not fair to all shareholders. If a majority shareholder takes actions directly, it has the burden of proof in court to show that any actions taken accord with the "entire fairness" standard. A more in-depth discussion of these issues can be found in this article out of the Harvard Law School Forum on Corporate Governance and Financial Regulation. | If 'literally 300' attorneys declined your case on the basis of a phone call, without looking into the details, I can see three options: You are unable to communicate the nature of your case clearly. In this posting, you mentioned complaints against a company, a municipality, and a landlord, plus being evicted. Focus on explaining one case. If you think you 'know for a fact' that you have several big payouts coming, there is the first problem. Nobody knows what a jury will decide. An attorney might hesitate to work for a client who does not understand this. Litigation is always a risk. All your cases actually lack merit, a lawyer sees this and you do not. Not knowing the cases, I cannot tell. (And no, you should not explain them in detail on the web. If they do have merit, posting your strategy hurts the cases.) Your state has a vexatious litigant list and you are on it. That would not prevent an attorney from taking your case, but it might make them hesitate. | united-states Are customers who withdraw their profits and lending earnings from FTX during its last days before its bankruptcy liable to clawback from creditors? It seems that some companies and investors, such as Binance, are liable to pay creditors through clawback for FTX collapse as a result of fraud. If the right conditions are met the amounts paid can be clawed back. There are a lot of special rules that apply but the most general is that if you receive money or property to pay an amount owed on a debt within 90 days of the bankruptcy petition being filed without providing substantially contemporaneous and equivalent value at the time that you receive the money, and the amount received is more than you would have received in a Chapter 7 bankruptcy, then the amount received may be clawed back into the bankruptcy estate. Usually, in financial transactions, the dollar values in an account in your name are considered to be contractual debts owed by the financial institution to you, rather than "your property". So paying amount the balance of an account (to the extent it has been at that level for at least 90 days before the filing of the bankruptcy petition) will usually be a preference and give rise to a clawback obligation if the bankruptcy estate choses to enforce that right (in a Chapter 7 that call is made by the bankruptcy trustee, in a Chapter 11 that call is made by the "debtor-in-possession"). If a clawback amount is not returned voluntarily, court action can be taken to recover it. This is what a court has ruled, for example, in one recent crypto bankruptcy case. The lookback period is 1 year rather than 90 days for "insiders". If the debt is backed by new collateral in this time period, even if not paid, the agreement to provide new collateral can be invalidated (certain additional technical rules apply to this provision). Small amounts (up to $600 for consumer debtors and $5,000 for non-consumer debtors) are disregarded even if the payment would otherwise be a preference subject to being clawed back. To make sure I have fully answered the question: What about profitable customers? Suppose a customer made trading profits and earned interest from lending his cryptocurrencies on FTX. He managed to withdraw his funds just hours before FTX's collapse. Is he liable to for the clawback? Yes. If the conditions described above are met. The logic is that people who pull out money at the last minute due to luck or insider information should not be treated differently than those who do not do so. The relevant section of the bankruptcy code is 11 U.S. Code § 547 (Preferences). It states: (a)In this section— (1)“inventory” means personal property leased or furnished, held for sale or lease, or to be furnished under a contract for service, raw materials, work in process, or materials used or consumed in a business, including farm products such as crops or livestock, held for sale or lease; (2)“new value” means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation; (3)“receivable” means right to payment, whether or not such right has been earned by performance; and (4)a debt for a tax is incurred on the day when such tax is last payable without penalty, including any extension. (b)Except as provided in subsections (c), (i), and (j) of this section, the trustee may, based on reasonable due diligence in the circumstances of the case and taking into account a party’s known or reasonably knowable affirmative defenses under subsection (c), avoid any transfer of an interest of the debtor in property— (1)to or for the benefit of a creditor; (2)for or on account of an antecedent debt owed by the debtor before such transfer was made; (3)made while the debtor was insolvent; (4)made— (A)on or within 90 days before the date of the filing of the petition; or (B)between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5)that enables such creditor to receive more than such creditor would receive if— (A)the case were a case under chapter 7 of this title; (B)the transfer had not been made; and (C)such creditor received payment of such debt to the extent provided by the provisions of this title. (c)The trustee may not avoid under this section a transfer— (1)to the extent that such transfer was— (A)intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B)in fact a substantially contemporaneous exchange; (2)to the extent that such transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, and such transfer was— (A)made in the ordinary course of business or financial affairs of the debtor and the transferee; or (B)made according to ordinary business terms; (3)that creates a security interest in property acquired by the debtor— (A)to the extent such security interest secures new value that was— (i)given at or after the signing of a security agreement that contains a description of such property as collateral; (ii)given by or on behalf of the secured party under such agreement; (iii)given to enable the debtor to acquire such property; and (iv)in fact used by the debtor to acquire such property; and (B)that is perfected on or before 30 days after the debtor receives possession of such property; (4)to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A)not secured by an otherwise unavoidable security interest; and (B)on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor; (5)that creates a perfected security interest in inventory or a receivable or the proceeds of either, except to the extent that the aggregate of all such transfers to the transferee caused a reduction, as of the date of the filing of the petition and to the prejudice of other creditors holding unsecured claims, of any amount by which the debt secured by such security interest exceeded the value of all security interests for such debt on the later of— (A) (i)with respect to a transfer to which subsection (b)(4)(A) of this section applies, 90 days before the date of the filing of the petition; or (ii)with respect to a transfer to which subsection (b)(4)(B) of this section applies, one year before the date of the filing of the petition; or (B)the date on which new value was first given under the security agreement creating such security interest; (6)that is the fixing of a statutory lien that is not avoidable under section 545 of this title; (7)to the extent such transfer was a bona fide payment of a debt for a domestic support obligation; (8)if, in a case filed by an individual debtor whose debts are primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $600; or (9)if, in a case filed by a debtor whose debts are not primarily consumer debts, the aggregate value of all property that constitutes or is affected by such transfer is less than $5,000.2 (d)The trustee may avoid a transfer of an interest in property of the debtor transferred to or for the benefit of a surety to secure reimbursement of such a surety that furnished a bond or other obligation to dissolve a judicial lien that would have been avoidable by the trustee under subsection (b) of this section. The liability of such surety under such bond or obligation shall be discharged to the extent of the value of such property recovered by the trustee or the amount paid to the trustee. (e)(1)For the purposes of this section— (A)a transfer of real property other than fixtures, but including the interest of a seller or purchaser under a contract for the sale of real property, is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee; and (B)a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee. (2)For the purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made— (A)at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 30 days after, such time, except as provided in subsection (c)(3)(B); (B)at the time such transfer is perfected, if such transfer is perfected after such 30 days; or (C)immediately before the date of the filing of the petition, if such transfer is not perfected at the later of— (i)the commencement of the case; or (ii)30 days after such transfer takes effect between the transferor and the transferee. (3)For the purposes of this section, a transfer is not made until the debtor has acquired rights in the property transferred. (f)For the purposes of this section, the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition. (g)For the purposes of this section, the trustee has the burden of proving the avoidability of a transfer under subsection (b) of this section, and the creditor or party in interest against whom recovery or avoidance is sought has the burden of proving the nonavoidability of a transfer under subsection (c) of this section. (h)The trustee may not avoid a transfer if such transfer was made as a part of an alternative repayment schedule between the debtor and any creditor of the debtor created by an approved nonprofit budget and credit counseling agency. (i)If the trustee avoids under subsection (b) a transfer made between 90 days and 1 year before the date of the filing of the petition, by the debtor to an entity that is not an insider for the benefit of a creditor that is an insider, such transfer shall be considered to be avoided under this section only with respect to the creditor that is an insider. (j) (1)In this subsection: (A)The term “covered payment of rental arrearages” means a payment of arrearages that— (i)is made in connection with an agreement or arrangement— (I)between the debtor and a lessor to defer or postpone the payment of rent and other periodic charges under a lease of nonresidential real property; and (II)made or entered into on or after March 13, 2020; (ii)does not exceed the amount of rental and other periodic charges agreed to under the lease of nonresidential real property described in clause (i)(I) before March 13, 2020; and (iii)does not include fees, penalties, or interest in an amount greater than the amount of fees, penalties, or interest— (I)scheduled to be paid under the lease of nonresidential real property described in clause (i)(I); or (II)that the debtor would owe if the debtor had made every payment due under the lease of nonresidential real property described in clause (i)(I) on time and in full before March 13, 2020. (B)The term “covered payment of supplier arrearages” means a payment of arrearages that— (i)is made in connection with an agreement or arrangement— (I)between the debtor and a supplier of goods or services to defer or postpone the payment of amounts due under an executory contract for goods or services; and (II)made or entered into on or after March 13, 2020; (ii)does not exceed the amount due under the executory contract described in clause (i)(I) before March 13, 2020; and (iii)does not include fees, penalties, or interest in an amount greater than the amount of fees, penalties, or interest— (I)scheduled to be paid under the executory contract described in clause (i)(I); or (II)that the debtor would owe if the debtor had made every payment due under the executory contract described in clause (i)(I) on time and in full before March 13, 2020. (2)The trustee may not avoid a transfer under this section for— (A)a covered payment of rental arrearages; or (B)a covered payment of supplier arrearages. |
Can someone's name be removed from software they created if they transferred ownership of the software? Let's say that John is on Blue Team. Blue Team is a private, non-profit entity in the US that receives some funding from the federal government. John wrote some software while on Blue Team that was explicitly made for Blue Team to use. John put his name at the top of many of the code files he wrote. This code is public on Github, but does not have a license specified. However, John did something bad and was kicked off of Blue Team. During this process, John transferred ownership of the code repository on Github to Jane. Some members of Blue Team would be disturbed to see John's name. Because of this, Jane would like to change all mentions of John's name to "former Blue Team member." Can Jane do this? Does Jane's ability to do this depend on Github's rules for repository ownership, Blue Team's policy on IP created while on paid time, or something else? It seems likely that Jane would be able to remove John's name from the code on Github, but can Jane remove John's name from other versions of the software too? (Such as the versions of the software used internally by Blue Team.) | Presumably Blue Team are all employees of some company ("the employer"), so the software is a work for hire and copyright is owned by the employer. However in the UK and some other countries (but not in the US) authors also have "moral rights" over their work, including attribution, integrity, and association of an author to the work. This article (by Canadian lawyer Mark H. Evans) discusses the question of moral rights in works for hire: For example, if a former employee wrote a blog to promote a company’s services that was published on the company’s website under that author’s name, the company might find itself being sued for breach of the author’s moral rights if it were to delete the author’s name and replace it with the name of an employee who wasn’t the author but is still with the company. On the face of it John would be in a similar position to the blog author in the quote. So for the employer (including Jane, as an employee) to remove John's name would be a violation of his moral rights to attribution. In this case the source code is public. However in most commercial settings it would be secret: The secrecy of the code would make it harder for John to find out his name had been removed. However lets suppose that a friend still in Blue Team were to tell him. I'm not sure about discovery rules in various countries, but presumably a serious lawsuit could get confirmation. The secrecy of the source code also means that fewer people would see John's name there than if it were generally published. This would lessen the damages, but not eliminate them. John would probably be able to get an injunction ordering that his name be restored. Many programs are published with a credit list, and John would certainly have a moral right to appear on such a list with the same prominence as other team members. From later in the same article: While moral rights are personal and can’t be assigned, they can be waived. This is an important solution to navigating moral rights in works generated by employees and contractors. And because any assignment of copyright is not an automatic waiver of moral rights, the waiver must be express. So it depends on the contract between John and the employer. If John has explicitly waived his right to attribution then the employer is in the clear. | The code is copyrighted. You are not given any permission to use or copy any part of it, nor to create a derivative work based on it. There is no way for you to "make the copyright null". The code was copyrighted in 2005, and the copyright will not expire until 70 years after the death of the author, under US law. The period would vary in some other countries, but in no country that I know of will it expire in the next few years. That the author is dead, or the publisher out of business, does not change this legally. Someone, probably the author's heir, or perhaps whoever bought the remains of the publisher's business, will own the copyright. However, the ideas and programming techniques shown and discussed in the book are not protected, and you may use them freely to write programs, commercial or non-commercial. You need not even acknowledge the book as a source of ideas, although to do so would be nice. Of course, since the author is dead and the publisher not active, if you were to infringe the copyright by copying code from thsi book, there is a reasonable chance that no one would notice, but if someone did notice, the current owner of the copyright could sue you for infringement, and could perhaps win sizable damages. It would be safer to write your own original code using only the general ideas from the book. In future, do not ever assume that you can just take someone else's code (or other creative work, such as a book) and reuse it without permission, unless it is in the public domain, for example because it was published before 1923. | 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 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. | 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. | I don't see how. Remember that a license is a contract where the author gives permission to copy (modify, redistribute, remix, etc) a copyrighted work, provided that the licensee fulfills the stated conditions. If the license is not in effect, then we revert to the default situation under copyright law, which is that the potential licensee has no rights to copy the work. (Not counting particular instances of copying which are permitted under fair use and similar exceptions - I presume that's not what you have in mind, or the whole question is moot.) In this case, the conditions include that the licensee must credit the author under their chosen pseudonym. The licensee can't get out of that obligation simply because they find it distasteful or objectionable for whatever reason. If they don't want to do it, then they should not accept the license in the first place, and so refrain from copying the work. (Of course, if the author is offering the CC license in hopes of encouraging reuse of the work, then this may not be a desirable outcome for the author, so they might want to think twice about their choice of pseudonym.) Even if the author's pseudonym were something that would actually be illegal to quote (say, because it is obscene), I don't think it lets the licensee off the hook. A contract with illegal terms is void, so legally it is as if there is no license at all, and we revert to the default in which there is no right to copy. A question was raised in comments about the word "reasonable". I don't know of case law where this has been tested, so I can only speculate: The context suggests that "reasonable" is intended to refer to the means of attribution (for instance, where the attribution should appear in a piece of source code or documentation), not to the pseudonym. There's a legal principle that the specific governs over the general, and the requirement to credit the author by a particular pseudonym is clearly more specific than the general requirement of "reasonableness". It seems clear that the author, who is the one offering these terms, didn't intend for the general term "reasonable" to render meaningless their request for the use of a specific pseudonym; if they had, why would they have bothered to put it in? On the flip side, there's the principle of contra proferentem, that ambiguities in a contract should be resolved in the favor of the party that didn't draft it - here, the licensee. But it's hard to argue that this is really ambiguous; it seems quite clear what the author wants. Of course, the author can circumvent the whole issue, if they're worried, by licensing the work instead under a modified version of the CC license in which the word "reasonable" is removed. After all, there is nothing particular magical about CC's language: the contract is whatever the author and the licensee agree to, and they're just using the pre-written CC license as a convenience to streamline their negotiations. | If an infringement suit is filed, the plaintiff(s) would have rights of discovery. They could subpoena the source code in such a case for comparison. They could take the depositions of EvilCorp's developers and ask them about the libraries that they used. There might well be other ways to achieve the same effect. | 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). |
If a family member has taken a possession of mine for a long period of time, is that theft? I live at home with my aunty and about four months ago she has taken my property up to my nan's (without my permission) who lives across the state. Is it illegal for her to keep my possessions without my consent? | 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. | My best guess would be that they're recommending that you get a lawyer if you're trying to get your money back from the thief. A criminal prosecution may not be able to do that. | We are talking about larceny and larceny & destruction of property in the two cases. So at the minimum, there are more laws that apply. But what are the laws? Florida names its Larceny statute... Theft: 812.014 Theft.— (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property. Destroying someone's else property in Florida is in the statute on Criminal Mischief: 806.13 Criminal mischief; penalties; penalty for minor.— (1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto. So, yes, you would additionally get the criminal mischief charge, but... that only grants monetary damages of 250 USD plus the damages done to the items for first timers, but it can become upgraded to a felony in the third degree - which has a maximum limit of 5 years. Note that damaging items in the course of theft is specifically an aggravating factor for the theft charge, if grand theft is combined with property damage of 1000 USD and more. A bicycle costing between 750 and 5000 USD is grand theft, felony in the third degree according to 812.014.(2)(c)1. This is also the 5 years limit. One could get both sentences... but still only sit 5 years, because often sentences are served concurrently, only rarely consecutively. So, no, you do not necessarily commit a higher offense just for breaking the lock - you'd need to have a 1000 USD damage for that - but you most certainly commit additional offenses that can result in a higher verdict in the end. | I think the key word here is "assume". A person, N, who is clearly the next of kin of a recently deceased person D may not assume that s/he is D's sole heir, or indeed is D's heir at all. N must wait until D's will (if any) is known, and an executor or administrator is lawfully appointed. Only the executor may lawfully dispose of D's property, by conveying it to specified beneficiaries, selling it, giving it away, or by any other means. Anyone who does so without the proper executor's authority is probably technically guilty of theft, although in a case like the one in the question, a prosecution would be very unlikely. But N would be liable to any heir H for the value of items properly left to H but disposed of by N. H might not choose to pursue such a claim, but would be legally able to. N should remember that the value, monetary or sentimental, of objects may not be known to N, and may be much greater to H than N is aware of. I suppose that in the case of objects of slight value which must be dealt with promptly, such as perishable food on D's premises, reasonable steps would not be objected to. | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. | This is a good example of the life of the law being experience and not reason. While there is a logical argument that this isn't theft, in reality, this conduct would universally be considered an open and shut case of shoplifting and anyone who tried this would surely be convicted of a crime with consequences far more severe than creating a tort debt for conversion of the property. Also, you do intend to permanently deprive the store of its property. The fact that you intend to remedy that by paying for it doesn't change that. You aren't borrowing the property with an intent of returning it. | Of course she is living with you. Clothes, toothbrush, cooking and eating, sleeping, I suppose breakfast as well, that's living with you. And it's not illegal, but it is apparently in breach of your leasing contract. I'd study your contract carefully to see what the consequences are if she is living for you for more than 14 days. | 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. |
Are universities legally allowed to adjust, or deny private loans? I'm curious about my rights to my own private loan. (Co-signed by my brother) After getting my tuition and fees, I took out a loan to cover the remaining costs after aid. I do live with my parents - however, they purchased a car and cell phone in my name and then told me that I must pay for it myself. And because those bills are attached to me, my credit will obviously go down if I don't pay them. My parents do not support my living at all, even though I live with them. With that being said, I also have to add on car bill, gas, groceries, etc onto that private loan. I do not have time for a job, as I am taking 18 credit hours. So I desperately need the money in order to survive while going to school. Now, my school is denying my loan with the amount that I am asking for. They told me that if I want to take out that loan then they will only accept it if I reduce it. In my own personal opinion, they do not know the circumstances of my financial/home life, therefore shouldn't have any say in what I take out of a private loan. I am not doing this to buy clothes, unnecessary things, or anything that isn't absolutely needed. Which I have explained to them, but they do not care. I tried to search for any laws about private loans, but I am not an expert in law at all. Could somebody please help me? If you know anything about whether or not they are even allowed to do this, that would be helpful. | Student loans work very differently than any other ordinary loan you could take out. They have explicit restrictions that limit what kinds of things you can use them for, including your tuition, books and other required materials (sometimes even a laptop), room and board, groceries, transportation (like a bus pass), and a few other minor essentials for going to school (like school-provided health insurance, if needed). Your university should publish a public cost of attendance document somewhere which lists exactly what expenses are needed to attend there, and only those expenses can be covered with student loan financing. Student loan financing explicitly cannot be used to buy a car or pay off loans. You'd also be hard-pressed getting them to consider a phone plan essential, so you can't use that financing for your phone either. Now the other part of a student loan is that it's not actually a loan where you get all the money up-front. It is disbursed on an as-needed basis. It can almost be thought of as a pre-approval. It is a maximum amount that a certain bank is willing to allow you to take out in order to pay for college expenses, but not necessarily an amount that you will actually receive in full. That is up to the school and how much they evaluate you are eligible to take out. When the school is evaluating how much student loan financing you can receive each term, your car loan and phone plan are simply not relevant. They're not covered expenses for that financing, and they are things that you should be covering on your own outside of any school expenses. They are evaluating how much you actually need to cover all of your tuition and material expenses, and maybe groceries if you convince them that's necessary. Since you're living with your parents, room and board is not included. So yes, an university can control how much of a student loan you actually receive. They're explicitly in charge of determining that. If you want loan money that is not ultimately controlled by the school you are attending, then you would need to get a personal loan, but that doesn't really solve your problem since it's unlikely you'd find a personal loan with deferred payments. If the car and phone plan are causing you financial burdens, then you'll need to pursue other legal options to get out of those contracts (you might be able to void them if they were created in your name without your consent, or you might be able to strong-arm your parents into taking over financial responsibility). You cannot use a student loan to cover those payments, and the university will not give you additional money because of those financial obligations. | Education in India falls under the concurrent list -- i.e. both state and union laws apply. However, there do not appear to be any codified "student rights". The relevant national body for "technical education" is the AICTE, which does have a mechanism for grievance redressal, this is often used as the primary source of complaints against ragging. You can submit a grievance here. The 2004 Guidelines for Grievance Processes require a sub-30-day resolution of complaints. In fact, all accredited technical institutions in India are required to have a local Grievance Redressal Cell and Ombudsman as per this 2012 notification. Finally, you could contact AICTE directly Students may also file grievances at the UGC (University Grants Commission). The UGC is a statutory body in charge of "coordination, determination and maintenance of standards of higher education". In 1987, they released "Guidelines for Student Entitlement". See sections 2.5, 2.6 regarding fairness in evaluation and section 5 which deals with discriminatory treatment. At a state-level, you could try Rajasthan Sampark, which only applies to government institutions. As others have stated, you need to ensure that you have documented and clear proof to support your accusation, and that you should not back down in fear of reprisal. The process of collecting evidence may help you determine if you truly have a valid complaint, or are perceiving bias that does not exist. To the best of my knowledge, in answer to your second question, no, Indian jurisprudence does not have a similar concept of student rights as the United States and some of Europe. While reading the links for the other answers and searching for policies for this post, the one thing that becomes clear is a worrying lack of depth in policies and transparently available policies and data. If you choose to take this forward, I hope that you will document and publish your efforts. | I do not have a written agreement of her saying she will pay 1/5 of utilities cost. Can I still take her to small claims court to get my money back? Yes. This type of agreements does not need to be in writing. Proving the other roommates' timely payments is strong evidence that also she is under a similar agreement. You did not elaborate on the form of her refusals. If these are stated in writing, they might evidence elements that further weaken her legal position. For instance, these might reflect her inconsistencies and/or bad faith. Even if you were unable (which seems very unlikely) to prove that there is an agreement to the effect of splitting costs, you might still prevail on grounds of equity. | Nothing in the description strikes me as illegal or unlawful, so I am unsure of the grounds your friend would have for legal action. The questions a lawyer would ask (in addition to that) would be likely to include : How does your friend quantify the damage? The law is great for pursuing financial compensation, but does not handle abstract concepts. Has your friend used psychological counselling services, and what was the cost? What additional financial costs has your friend borne? If your friend has written to the University and has expected a response, what is the evidence of diminished trust? (The letter suggests otherwise.) Would a reasonable person (the proverbial "man in the street") be psychologically damaged by the events experienced by your friend? Is there evidence of a pre-existing condition? You've also mentioned yourself as a witness. Did you witness the eviction, or would you be attesting to your friend's state of mind? If the latter, what are your psychological qualifications? In the main Western jurisdictions, the answer to the question "can my friend sue?" is usually "yes", but whether they stood a chance of winning the suit would probably be a better question to ask. Your friend would only be likely to win a case against the University or the Security company if they could demonstrate unlawful or counter-contractual activity by staff, and were able to demonstrate financial damages that had been caused by that activity. | If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money. | If you buy a house, you can generally rent out a room in the house, unless in that jurisdiction there is some law against renting rooms in houses (that's actually a condition in my neighborhood, one widely ignored). If it's legal to rent (lease) a room, it is generally legal to sub-lease that room – as long as that's allowed under the original lease contract. I have never heard of a jurisdiction that has a blanket prohibition against subleases. So as far as the actual question goes, the answer is, "yes". The links are about something a different, namely rent control law in San Francisco, and the question of whether a tenant can be evicted from a rent-controlled unit because the owner wants to move in to the unit. Owner move-in eviction requires a specific procedure for giving notice, and the links are about these requirements. Conceivably, though, the question could be whether a person can buy a house that is being rented out, do a proper owner move-in eviction, and then lease a spare room. The SF rent laws require a good faith intent to move in and use as the primary residence for 3 years, and nothing prohibit subsequently leasing a room. Those laws pertain to evictions, not re-rentals. (It should be noted that once eviction under section 37.9(a)(8) has been carried out on a unit in a building, no other unit in the building can ever be so recovered. That could mean that the room in the house could never again be recovered, if it is considered to be a separate "unit" from the "unit" that is the whole house). | 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. | There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later. |
Why adjourn the House of Commons effective in half an hour? I was looking at a couple of Hansard reports and noticed that the last House of Commons debate of the day was preceded by a motion to adjourn. If the debate lasted more than half an hour, it was cut short. You can see examples of this at 2020-06-04 (not cut short), 1993-06-17 (cut short mid-sentence), and 1993-06-18 (cut short mid-sentence). My question is why do it that way. If the house wants to adjourn, why not adjourn immediately? If it wants another debate, why not move to adjourn afterward, and then adjourn immediately? I assume there's some parliamentary reason behind this "let's adjourn now, effective in half an hour", but can someone explain it to me, please? | It's the mechanism used to allow for adjournment debates: An adjournment debate is a way in the Commons of enabling a debate to take place but without a question which the House must then decide. An adjournment debate is held on the motion 'that the House (or sitting) do now adjourn'. There is a half-hour adjournment debate at the end of each day’s sitting. They are an opportunity for an individual backbench MP to raise an issue and receive a response from the relevant Minister. At the end of the day’s main business the Speaker calls a government whip to move the motion 'That this House do now adjourn'. The MP who has been allocated the debate is then called to speak and the Minister is given time to reply. Regarding the timing: Commons standing order 9 sets out the default schedule for sittings. The end of business for each sitting is known as the "moment of interruption" (MoI), and varies depending on the day (10pm Mon, 7pm Tue/Wed, 5pm Thu). If the adjournment debate starts after the MoI, it lasts half an hour. If it starts before the MoI, it may last until half an hour after the MoI. In other words: the adjournment debate is guaranteed to last at least half an hour; but if the Commons finishes its other business early, the adjournment debate can expand to fill the extra time. | "Law" is actually a very broad term, which encompasses statutes, rules, regulations, precedent and I'm sure some other things that I'm forgetting. The popular understanding of "law" is the statute, which involves Congress (at the federal level) or the legislature (and the state level). That is the kind of law that we say is "passed". At the federal level, some number of representatives or senators will introduce a bill into the House or Senate, and it is discussed in a relevant committee; if it is approved, it moves to debate by the whole House / Senate and if it passes it moves to the other house. Once it has passed both the House and Senate, it goes to the President where it may be signed, rejected, or ignored. If signed, it becomes "a law", if rejected (vetoed) it can become law anyhow if it gains a 2/3 majority vote in both houses. If the President ignores it ("pocket veto"), it becomes law in 10 days (Sunday is not a day), unless Congress is not in session. Oh, and, that's just the tip of the iceberg. At the state level, there is a similar process, with the further option of referenda and initiatives. In the former case, a particular law will have been passed by the legislature and then it is put to a popular vote for affirmation / overturning, and in the latter case a new law is proposed by the people (generally through a petitioning process) and then voted on by the populace. There is a fair amount of variation on how this works and what can be done, by state. A law can be repealed (withdrawn) by passing a law that repeals a given part of the existing law, and it can be re-written. The Supreme Court of the jurisdiction can also withdraw a (part of a) law if it is found to be unconstitutional. No foreign body can override US law, although if the US is bound by treaty (which necessarily involves another country) then we might have to do whatever that treaty says, because we approved the treaty. One limit on what we can be forced into by treaties is that a treaty cannot violate the constitution. The largest source of law in the US is actually not statutory, it is regulatory law, where a regulatory agency writes rules with the force of law (so really, it is law). In that case, there has to be a statutory basis, where at the federal level a law is passed empowering an agency to write rules, where the scope of the regulation is supposed to be related to the empowering statute in some manner. In that case, there is a vetting process, but basically no voting, just an announcement, some discussion, and eventually the rules are set. Analogous processes exist at the state level. We also have various county and city governmental bodies, where e.g. the city council can vote to create a law; or, they can empower an agency to write regulations. Yet another source of law is the Executive Order, where the president can decree that such and such will be the case (as long as it has something to do with what the executive branch does). These are somewhat limited in scope, but every president seems to like to test what that limit is. Governors get to do it too! And lastly, courts have an indirect power to make law, by ruling on how an existing law is to be interpreted (as well as ruling that a law or part of a law is unconstitutional). | 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. | In a civil action: If you are serving written discovery on a party, under the federal rules of civil procedure, or in any state whose adopted the model rules, (rules 33-37 typically), you need only send your requests for interrogatories, the production of documents, or for admissions to the party (through their counsel unless they are pro se), accompanied by the discovery notice, detailing the time frame in which they are due. It is typical that this time frame will get extended, sometimes by double or triple the original 21 day period plus 3-5 days for mailing. When the party is represented (this is 99% of the time) the attorney will just call you or email you for an extension and it is pro forma to assent to this. The court will not be happy if they need to seek permission of the court for this because you refused, as it is that common, and you will just get a reputation as a non-cooperative pain (not to mention, the time will come when you need an extension, and what comes around goes around). If they seek an unreasonable amount of time (I'm talking so close to the discovery cut off that you'd not have time for depositions after receipt), then you can limit it, but a couple of months is common. This need not go through the court. If they are not represented, they may just be late rather than calling, in which case you have a duty to contact them before involving the court. This is just because they don't know it is the norm, and it is nearly impossible to pull together everything needed from a full set of discovery in 21 days. When there is a true discovery dispute, you must show the court that you made all due diligent efforts to resolve it on your own. I don't have my rules in front of me (I will edit and add this when I do) ... but this is in the rules, it is not just practically speaking. Also, many jurisdictions require that you contact the court's clerk and get permission before filing any discovery motions. Sending a subpoena is not ever how this is dealt with. If the opposing party fails to respond, or if they are continually late and despite numerous contacts they still do not produce, then you would schedule a discovery conference with the court at which time you will seek a motion to compel. The court will typically give them even more time at this point. You are correct in that when a third-party is served with discovery request, since they have no obligation to take part in the case but for the presence of a subpoena; hence, in this situation you would use a subpoena to request whatever it is you are requesting. They may get their own lawyer who will try to limit your right to get anything from them as a non-essential party, but if it is really relevant you can do it. You would also use the subpoena for depositions, to ensure that witnesses present themselves. Otherwise, subpoenas are reserved for acquiring witnesses to appear in court or for custodians of records to bring records to court for hearings or trial. | Sort of The 25th Amendment is crystal clear that the VP and a majority of the cabinet can declare in writing to the president pro tem of the Senate and the speaker of the house a presidential inability, whereupon the VP becomes the acting president. The president can then immediately transmit in writing his declaration that there is no inability, and then he resumes his position as president until the VP and majority of cabinet (not necessarily the same members) again declare a disability, within 4 days. If that happens, then Congress decides the matter. There is a 28 day period for a super-majority of Congress to make that decision, plus 48 hours for assembling of Congress is not in session. The problem is that the amendment says that the president resumes his powers unless something happens within 4 days. It does not say that he must wait 4 days to see what the VP response is. If the VP does not counter-respond immediately, then it is possible, but not guaranteed, that the president regains power until the VP reaffirms the disability. This is a question that would have to be decided by SCOTUS. In the presumably short interim, there would be serious constitutional questions as to the legality of the actions of either POTUS or VPOTUS. | If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money. | Say I build myself a faraday cage/wave screen around my house, potentially resulting in poor nework coverage for my neighbours. Questions about land property and constructing permits apart, can I be sued for that? By the network operator? by the neighbours? In most countries, the use of the radio spectrum is regulated (who may send what on which frequency, at which power, etc.). As part of these regulations it is usually forbidden to interfere with the reception of radio waves. So if what you do causes your neighbours to have reception problems, then yes, that will most likely be illegal. In France, the government agency responsible for these problems is ARCEP (Autorité de Régulation des Communications Électroniques et des Postes). If someone notices reception problems, they can complain to ARCEP, as explained for example on the page Le traitement des plaintes en brouillage ("Handling of complaints about jamming"). While you will probably not go to prision for jamming reception, you could have to pay a significant fine. This article on cell phone jamming mentions a penalty of "up to six months in prison or a 30,000 € fine" for "selling or installing" a cell phone jammer. In addition to that, anyone harmed by the reception problems could sue you in civil court and try to collect financial damages (how much that would be will be up to a judge to decide). That said, note that a faraday cage around your house should not hinder reception outside your house. A faraday cage only influences reception inside the cage, not outside. However, that is off-topic here :-). | I haven't listened to the podcast, but this is probably referring to the anticipated "Renters Reform Bill". A white paper was published on 16 June 2022. There is no Bill before Parliament yet, so the mooted changes are quite a long way from happening. (Additionally, the usual political churn may mean that this does not happen at all. The Secretary of State has already changed, and will likely change again once there is a new Prime Minister; political priorities may shift in all sorts of ways; there could be a general election; etc.) One proposal from the government is (section 3.1): We will abolish Section 21 evictions and simplify tenancy structures. To achieve this, we will move all tenants who would previously have had an Assured Tenancy or Assured Shorthold Tenancy onto a single system of periodic tenancies. Tenants will need to provide two months’ notice when leaving a tenancy, ensuring landlords recoup the costs of finding a tenant and avoid lengthy void periods. This will provide greater security for tenants while retaining the important flexibility that privately rented accommodation offers. This will enable tenants to leave poor quality properties without remaining liable for the rent or to move more easily when their circumstances change, for example to take up a new job opportunity. Landlords will only be able to evict a tenant in reasonable circumstances, which will be defined in law, supporting tenants to save with fewer unwanted moves. Currently, tenants on an AST cannot leave their tenancy during the fixed term, unless the tenancy agreement specifically provides for this with a "break clause". A break clause might say that after six months, the tenant is allowed to terminate the arrangement with one month of notice to the landlord. Or there might be no break clause at all, so that the arrangement can end early only if the landlord and tenant agree ("surrendering the tenancy"). Once the fixed term ends, it can be renewed for another fixed term, or terminated, or else it rolls on to become a "periodic tenancy", typically month-to-month. The tenant can give notice to quit during this time. The government's proposal seems to amount to having no initial fixed term, but a statutory periodic tenancy from the get-go. As far as timing, the white paper says: We will provide at least six months’ notice of our first implementation date, after which all new tenancies will be periodic and governed by the new rules. Specific timing will depend on when Royal Assent is secured. To avoid a two-tier rental sector, and to make sure landlords and tenants are clear on their rights, all existing tenancies will transition to the new system on a second implementation date. After this point, all tenants will be protected from Section 21 eviction. We will allow at least twelve months between the first and second dates. Again, the Bill has not been introduced to Parliament or even published in draft, so Royal Assent is a long way off. |
Do these terms contradict each other for who owns work created by contractor? These two sentences are literally side by side and seem to be saying opposite things. All deliverables and associated documents...developed by Contractor during the term of this Agreement shall belong to Agents or its clients for whom work is being performed by Contractor. Contractor retains all rights to source code or content, pre-existing code or content...or other methods it may employ in the course of creating deliverables for Agent. With Deliverables defined as Software provided in object and/or source format or documentation or any other materials required by Contractor by Agent... In this scenario would it be interpreted in favor of the person who did not draft the terms? In general, does position in contract matter where a term occurs? For example if term A) is written on line 10 and term B) is written on line 11, is it reasonable to assume term B) takes precedence or modifies term A? | would it be interpreted in favor of the person who did not draft the terms? Yes, provided that the interpretation is reasonable. That is known as the doctrine of contra proferentem. Here, the term "deliverables and associated documents" might entail a contradiction if that term [allegedly or literally] encompasses "source code or content". That depends on what definition(s) of "deliverables and associated documents" can be adduced from the contract. The term could refer to items that are not "source code or content", such as the binary files (i.e., executables and DLLs), instructions & documentation on how to operate and troubleshoot the application, and so forth. In that case, there would be no contradiction because there is no overlap between these items and the source code. if term A) is written on line 10 and term B) is written on line 11, is it resonable to assume term B) takes precedence or modifies term A? No. The sequence of clauses/terms itself does not determine which one outweighs or qualifies the other. Instead, the language used in the contract is indicative of the parties' intent and therefore how the terms of that contract relate to each other. | Does "in the course of providing services" mean "during the same time as providing services" or "for the purpose of providing services" or something else? I ask because I am a programmer who will be working on my own project during the same period as I am providing services to this Client, but after-hours and not for the same purpose or business. I want to make sure that what I create for myself I will own. The best definitions that come to mind off the cuff are "related to" and "in connection with", and both of those phrases appear in the same sentence, so that is quite close to the mark. Black's Law Dictionary (5th edition 1979) (from my hard copy edition) defines "in the course of employment" as follows (citation omitted): The phase "in the course of" employment, as used in worker's compensation acts, related to time, place and circumstances under which accident occurred, and means injury happened while worker was at work in his or her employer's service. Dictionary.com defines "in the course of" as: during the course of. In the process or progress of The best definition I gleaned from relevant case law is as follows: [A]n invention made or conceived in performing, or as a result of performing, the work required by a contract is made or conceived "in the course of" that contract. That would be true even though the invention was not specifically sought in the terms of the contract. An invention is made or conceived "under" a contract when it is made or conceived during the life of the contract and the invention is, in whole or in part, specifically provided for by that contract. Fitch v. Atomic Energy Commn., 491 F.2d 1392, 1395 (Cust. & Pat. App. 1974). The law which forms the background against which the contract term in question is drafted is discussed in the following language from a Federal Circuit patent law case: The general rule is that an individual owns the patent rights to the subject matter of which he is an inventor, even though he conceived it or reduced it to practice in the course of his employment. There are two exceptions to this rule: first, an employer owns an employee's invention if the employee is a party to an express contract to that effect; second, where an employee is hired to invent something or solve a particular problem, the property of the invention related to this effort may belong to the employer. Both exceptions are firmly grounded in the principles of contract law that allow parties to freely structure their transactions and obtain the benefit of any bargains reached. Banks v. Unisys Corp., 228 F.3d 1357, 1359 (Fed. Cir. 2000). A similar contact is applied in the case Greene v. Ablon, 794 F.3d 133, 142 (1st Cir. 2015), but the term was not defined or disputed in that case. This case is still useful, however, for purposes of seeing the kind of issues that are typically raised in a case like this one and to assure yourself that the contract probably is enforceable. For the purposes of this question, the difference between an employee and an independent contractor is immaterial. | Am I contractually obligated to follow that old handbook? Yes. Consider this: your employer gave you a copy of the handbook saying, "here is a copy of the staff handbook." Because of this, you know that the document in question is the staff handbook of your company, regardless of the fact that it bears an old name, and that the policies it expresses are part of the terms of your employment contract. If you were truly concerned that the document in question had no validity as the staff handbook, you perhaps should have expressed that concern by telling the person giving you the document that they appear to have given you the wrong document, because it bears a different name. By not doing this, you accept the terms in the document. On the other hand, if you do do that, you'll just irritate the people who have to produce a rebranded staff handbook so they can give you a copy. | Recall the basic principle of copyright law, as detailed in 17 USC 106: The copyright holder has the exclusive right to make copies; prepare derivative works; or distribute copies by sale, rental, lease, or lending. Other people can legally do these things only if they are given permission by the copyright holder, typically via a license. (Remember, the literal meaning of the word license is permission.) Often, the copyright holder will require a prospective licensee to accept various terms and conditions before the license will be granted. If there is "no EULA", or if there is one but the purchaser has not agreed to its terms, then the purchaser has not been granted any such license, hence does not have permission to do any of the things listed above. If they do so anyway, it is illegal copyright infringement and they will be liable for damages. To use a firewall analogy, copyright law is "default deny". So let's take your questions one by one: Do they own the software? US law has no concept of literally owning software. The closest thing is owning the copyright, which the purchaser certainly does not. It still belongs to the vendor that wrote the software (or whoever they may have later transferred it to). Can they legally alter the code of the program they purchased? No, that would be preparing a derivative work. The copyright holder has not granted them a license to do that. (There are some exceptions for purposes such as reverse engineering and interoperability, see 17 USC 1201(f)). Can they legally redistribute it No; again, that is the exclusive right of the copyright holder, and the purchaser has not received their permission. or transfer ownership? Maybe, if the first sale doctrine applies. Its application to software is complicated. The user has a better case for being able to sell the software if it exists as some tangible object which is transferred (physical media, pre-installed on hardware, etc). Can they legally modify the code of the program for others who have also purchased the same package? No, that would be preparing a derivative work. Can they take that software and install it on a secondary machine? No, that would be making a copy. | Let me start by saying that real estate contracts are some of the most heavily regulated contracts and details vary enormously by jurisdiction. That said ... To vary a contract, the contract must actually contain provisions that allow for it to be varied and variations must be in accordance with those. These sorts of clauses are common in long-term contracts (building, mining, logistics etc) but are less common (but not unknown) in transactional contracts like real estate sales. If the contract does not contain such provisions then it can only be varied by a collateral contract which has the same basic requirements of any contract - in this particular case, were you offered something in return for agreeing to delay settlement? If you weren't you do not have a collateral contract that varies the original contract. Notwithstanding, even though the other party delaying settlement from the 11th to the 18th is a breach of the contract by them, by agreeing to it you would be prevented from enforcing your rights under the contract by the doctrine of promissory estoppel. This presumes that they actually settle by the 18th - if they don't all bets are off and you can enforce the rights you have from their breach by failing to settle on or before the 11th - just don't agree to any more extensions. What you remedies are will be detailed in the contract. These would normally include issuing a notice for them to settle by a given date - if they don't do that you can terminate the contract and keep the deposit. You could also sue for damages. Don't do any of this (or anything else) without getting legal advice first. Edit The OP has put in a comment a rather vital piece of information: there is a clause making settlement contingent on the buyer selling their condo. If the delay is in accordance with that clause then the vendor is stuck, even if settlement takes 10 years. | 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. | Depends on the NDA Just like any other contract, it does what it says it does. You could draft the NDA either way. | Absolutely it is. If a contract contains void provisions then, in general, the contract itself is void for uncertainty. A void contract never existed so you couldn't use this to terminate a contract because there never was a contract. Contracts of employment are typically heavily regulated and the regulations may tell you to deal with void provisions in a different way. However, for common law contracts a void provision can sink the whole thing. |
Do children hold the copyright over their own creative works? I was recently looking at a story I wrote when I was 8 years old. I presume that, however the law works exactly, I now hold copyright over it at age 30. But think about when I originally wrote it. Did I get automatic copyright ownership of it, as is typically the case when one makes a creative work? Or did my legal guardians hold the copyright instead, because I was a minor? | Children own their own stuff Legal guardians are legally responsible to preserve it and use it in the child’s best interest. If doesn’t matter if that stuff is real, personal or intellectual property. | The modern rule in the UK is that copyright lasts until the end of the calendar year following 70 years after the death of the author. So if the author died in or later than 1953, it would be under copyright under this general rule. However, this wasn't always the rule and the museum speaks of a copyright revived in the 1990s. So I went down that rabbit hole of historical UK copyright legislation. I personally find it interesting, but it turned out to not be entirely determinative. It all turns on publication date and date of death of the artist, neither of which I can find, with the museum only stating the artist was active in the 1930s. But even assuming the most favourable facts for this to still be copyright under a "revived" copyright, the latest date I can find for copyright to still remain under that regime is end of 2015. Per Copyright Act 1956 s. 3(4)(a): in the case of an engraving, if before the death of the author the engraving had not been published, the copyright shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which it is first published; For the fact pattern I'm outlining, we must assume the author died before publication. As for the engraving bit, s. 48 defines that lithographs are engravings, and while I am far from an expert in this field, skimming the Wikipedia article on lithography, it does seem quite possible the poster could be a lithograph. I'll note here since you bring up who precisely would be the owner of the original copyright, that it does seem likely that the poster was a work for hire, following the provisions of s. 4(2). As such, the copyright would have indeed ultimately transferred to British Rail. Jumping ahead a bit, the more precise year which the museum states is "the 1990's" is 1995 (we'll get to why). So in order for copyright to have first expired as per the museum's statement and the authors active years, we must assume a publication date between 1930-1945 (or thereabouts, I'm not being super careful in this answer about the months things happen in, so there may be accumulation of off-by-one errors). Because of those years, I now have to quickly address why the Copyright Act 1911 isn't relevant. The transitional provisions outlined in the Seventh Schedule reveal that only for photographs are the copyright duration provisions maintained from the 1911 Act. Now we can jump into the modern law, the Copyright, Designs and Patents Act 1988 (CDPA). The transitional provision in the Schedule 1 s. 12(2)(b) directly maintains the 1956 copyright duration in this case which given our possible publication years, would have led to copyright expiry sometime between 1980-1995. However, in 1995, the UK passed The Duration of Copyright and Rights in Performances Regulations 1995. This was in accordance with European legislation harmonizing copyright duration, in Directive 93/98/EEC (itself since replaced by Directive 2006/116/EC). Side Note: 1995 is a peculiar year for copyrights in Europe due to that directive and so is exactly where I started my research for this answer, because it caused weird quirks for copyright terms in some countries in some cases. For the UK, s. 5 of the regulation amended the CDPA, basically establishing the general European standard of copyrights expiring 70 years after the author's death. More importantly for our case though is the regulations own section explaining in which cases the new copyright term expires. In s. 16: The new provisions relating to duration of copyright apply— (a) [...] (b) [...] (c) [...] (d) to existing works in which copyright expired before 31st December 1995 but which were on 1st July 1995 protected in another EEA state under legislation relating to copyright or related rights. Now, I'm not going to go through and look at all the EEA contries legislation to confirm, but it seems incredibly likely that one of them would have had engravings protected for life+70 in 1995, given that's what Europe has now standardized on (since we're assuming pre-publication death for an author who was active in the 1930s). Notably, s. 17 even defines cases of expired works re-entering copyright as "revived copyright", matching the terminology the museum's statement used. It would have been great if the 1995 regulation explicitly spelled out the relationship with CDPA's Schedule 1 s. 12, but in judicial interpretation, newer legislation takes priority, so the 1995 law would control. Note: The answer is getting long enough so I'm not going to fully research/cite this, but for regulations vs. legislation, we have a weird case of a regulation amending a statute. I'm fairly certain this is due to UK Acts passed for European Community membership elevating regulations to primary legislation when they are passed for compliance with European law. So given our assumed facts, the poster would have revived copyright per the 1995 Regulations. However, you may note (as I belatedly did after first posting this answer) that even given revived copyright, that revived copyright is still life+70. And the assumptions made for copyright revival under this clause requires a posthumous publication date of 1945 at the latest. This means at best any copyright under these particular circumstances would have expired in 2015. There is a bit of a middle ground here. If the poster is not a lithograph, or the publication was not posthumous, the work would have gained a life+50 term per aformentioned Copyright Act 1956 s. 3(4). But then for copyright to expire and be revived, we still have to assume a 1945 death date at the latest. Alternatively, instead of copyright revival, it could have gotten extended from life+50 to life+70 per the 1995 Regulations s. 16(c). But because we are more than 20 years from 1995, it mathematically works out that it doesn't matter anymore and we can just work with the life+70 rule. A combination of 1995 Regulations s. 16(c) and posthumous publication though does actually give another reasonable way for the work to still be under copyright. If published in 1988 before the CDPA entered into force, it would have followed the cited 1956 rules of copyright expiring 50 years after publication. The 1995 Regulations s. 16(c) specifies that longer existing terms can continue. So that results in 2038 as a latest possible year through this method. In the end I think there are two or three reasonable interpretations: The museum is correct the work is under copyright, but incorrect about the reason. It's instead because the work is under copyright because the author died after 1953 (or is still living), or The work is still covered under the 50 years after posthumous publication rule for engravings established in the Copyright Act 1956 (publication years 1973-1988 for copyright expiry at the end of calendar years 2023-2038). The museum is correct that copyright was revived, but I can't find a way for this to be true and for the work to still be under copyright (with 2015 the latest year I can find for the given facts). Note that this is my own reading of legislation, please take it with a grain of salt. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | The first copyright law dates from 1710, so it's not true that Chekhov wrote before any copyright laws. Any work from prior to 1924 isn't necessarily safe to use (it depends on when the author died). It is in the US but will complicate things if you publish internationally. Unless you translate with something like Google translate, translation is definitely a creative process. This is especially true (although probably not significant legally) for something like a poem, where its' extra hard if you try to keep the original metre and rhyme scheme. If you publish work in the public domain, you would have some claim to the typography. If the translator has done a copyright assignment to the publisher as part of the publishing agreement, they would hold the rights to the translated version. | Federal law governing copyright, and state and federal law governing trademark, do not make any stipulations about the person enjoying the particular property right. In lieu of a specific restriction, the person may be an alien, a prisoner, a public employee, a corporation, or an astronaut. There are limits on minors and contracts, but no contract is required to write a book, make a sculpture, or create a distinctive business mark. (Those limits potentially raise questions about a minor signing away their author's rights if they create a work for hire, which you didn't ask about. A contract is typically necessary to profit off of such a creation, but not always). The copyright office even says that you can register copyright (important, registration is necessary to get maximal protection). There is a bit of an issue that a minor has limited ability to sue (for infringement), so in Utah Rule 17 you would need a guardian to sue for you, likewise in federal court (same number!). | No If YT#1 gets a license from artist A, that permits YT#1 to do whatever copying and reuse is stated in the license. It might be narrow or very broad. Usually such a license will only grant permission to the person who asked. Unless the license also grants permission to YT#2, or to some broader group which includes YT#2, YT#2 cannot claim any rights under such a license. Assuming that the license does not include him or her, YT#2 has the same rights as any member of the public would, but no more. In general, pitch raising a piece of music is a way of creating a derivative work. In the US, under 17 USC 106 one needs permission from the copyright owner to create a derivative work. Otherwise doing so is copyright infringement. The laws of other countries, and the Berne Copyright Convention have similar provisions on this point. Creating a derivative work requires permission in all countries that I know about. "Piggybacking" is not a thing in copyright law. A copyright owner can give permission (usually called a license) to any person or group of persons that the owner pleases. The permission does not extend to anyone else. This is true in all countries. I should be clear that YT#2 needs permission from both YT#1, and from A. The way the question is worded I have been assuming that YT#2 had permission from YT#1, but a comment from grovkin made it clear that I needed to be more explicit about this. It is possible for a license to permit a person to pass on the license to others. For example, all CC licenses and all copyleft and most open source licenses do this, and others could. But the license must explicitly grant such permission. The one way in which a person might create a derivative work without permission and without it being infringement is if an exception to copyright applies. In the US the main exception to copyright is fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more detail on fair use. Fair use decisions are made on a case by case basis, and generally depend on the detailed facts of the ase. But based on the limited info in the question, this would not qualify. It seems to use the whole piece of music, which tends to weigh against fair use. The new work does not seem to be transformative, that is, it seems to serve the same general purpose as the original. The new work might harm the economic value of the original, or might if many people did this. The original is creative, not factual. All of those weigh against fair use. Different countries have very different exceptions to copyright, and I do not know all of them. But the use described in the question does not seem to fit any that I know of. In any case, an exception to copyright applies to anyone, and does not depend on another person's license. It is thus never a form of "piggybacking". By the way, the question describes pitch raising ads "illegal". Making an unauthorized derivative work gives the copyright owner grounds to sue. If the owner does sue, and wins, s/he might be awarded money damages, and the court might issue an injunction ordering the infringer not to infringe again. But it would not normally be treated as a crime, and law enforcement would not be involved. In the US, only bulk copyright infringement, carried out as a business, is usually prosecuted (for example a factory churning out unauthorized music CDs). | It depends on the game and what you copy. Games are an utter nightmare when it comes to IP law as so many parts of them cannot be copyrighted. Game rules for example cannot be copyrighted, nor can the concept itself. Some things can be copyrighted or trademarked. You cannot use the following: Names Written elements- while the rules themselves can't be copyrighted, rulebooks can Artwork and other visual elements Miniatures designed for the game Original characters Try to avoid these and the Hasbro lawyers should leave you alone. | The code is copyrighted. You are not given any permission to use or copy any part of it, nor to create a derivative work based on it. There is no way for you to "make the copyright null". The code was copyrighted in 2005, and the copyright will not expire until 70 years after the death of the author, under US law. The period would vary in some other countries, but in no country that I know of will it expire in the next few years. That the author is dead, or the publisher out of business, does not change this legally. Someone, probably the author's heir, or perhaps whoever bought the remains of the publisher's business, will own the copyright. However, the ideas and programming techniques shown and discussed in the book are not protected, and you may use them freely to write programs, commercial or non-commercial. You need not even acknowledge the book as a source of ideas, although to do so would be nice. Of course, since the author is dead and the publisher not active, if you were to infringe the copyright by copying code from thsi book, there is a reasonable chance that no one would notice, but if someone did notice, the current owner of the copyright could sue you for infringement, and could perhaps win sizable damages. It would be safer to write your own original code using only the general ideas from the book. In future, do not ever assume that you can just take someone else's code (or other creative work, such as a book) and reuse it without permission, unless it is in the public domain, for example because it was published before 1923. |
When is it legal to record someone who is not intending to be recorded? In Canada if you're a party to a conversation you're allowed to record it without other's knowledge. What if you're not a party but someone is talking very loudly? For example you want to file a noise complaint about your neighbours? Also what if it's an accident? Say you're recording a private conversation with another person, and someone walks by or interrupts and says something. Would it be illegal to keep the recording? | The prohibition applies to any "private communication". That term is defined here, as any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it Additionally, "intercept" is defined: includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof If you talk loudly, it is not reasonable to expect that other people will not hear you, nor is it reasonable to expect people to not listen to things that they can hear. | Disclosure to police of an illegal recording is permitted by s. 193(2)(e), and in court by s. 193(2)(a). The recording could be excluded if the person who made the recording did so on behalf of police (to sidestep their obligation to obtain a warrant), but even then its importance as evidence may outweigh other Charter considerations. | Yes, you're allowed to pay someone to keep quiet, as long as whatever they're keeping quiet about isn't evidence of a crime. Companies can do this too, and quite often do. Offering to keep quiet in exchange for money may well constitute blackmail. But that doesn't appear to be an issue here. | Did Avi Yemini illegally record “Jim Jefferies” by using a hidden mobile phone? No. One- and two-party consent rules are about confidentiality of a conversation rather than an issue of whether either party gets to monopolize the recording(s) of their conversation. In this case, the conversation took place with both parties' awareness that the conversation was being recorded for its subsequent broadcast[ing] or transmission to the public. At that point it is irrelevant whether there were additional devices recording the same conversation. The parties' aforementioned awareness is tantamount to mutual consent, and thus it precludes either party from alleging a violation of the confidentiality that the two-party consent rule seeks to protect. | Yes, but it’s not in the Criminal Code It’s in the SURVEILLANCE DEVICES ACT 1998. s6 prohibits using an optical surveillance device to record (or observe if the person is not a party) “private activity” without consent. The penalty is a $5,000 fine or imprisonment for 12 months or both. | You give no jurisdiction but in general: First, police have no obligation to be honest. So, yes they can collect this without consent by e.g. taking hair from your hairbrush (with a warrant) or giving you a glass of water while interviewing you and getting it from your fingerprint oils (which may not actually be technically possible but never mind that). No, they can't take it by "force" by sticking a swab in your mouth. Yes, it will almost certainly go into a database. Of course, there are some jurisdictions where police are entitled to decide you are guilty based on the fact that you didn't pay them a bribe. | If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent? | 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. |
Is the US officially not a member of the WHO now? The USA's President Trump has announced that the country is "terminating our relationship" with the World Health Organization. But I haven't been able to find any information on what the legal consequences of such an action are. The WHO constitution lays out the process for joining the organization, but not for leaving. Can the US be said to officially no longer be a member, or is this some unprecedented legal gray area where there's no formal definition of what it means to be a non-member? | The law regarding US membership in the WHO is 22 USC Subchapter XX. 22 USC 290 states that "The President is hereby authorized to accept membership for the United States in the World Health Organization", and 22 USC 290a empowers POTUS to appoint delegates. 22 USC 290c directly addresses withdrawal: In adopting this subchapter the Congress does so with the understanding that, in the absence of any provision in the World Health Organization Constitution for withdrawal from the Organization, the United States reserves its right to withdraw from the Organization on a one-year notice: Provided, however, That the financial obligations of the United States to the Organization shall be met in full for the Organization’s current fiscal year. The law does not state exactly how it is to be determined that the US has exercised its right to withdraw. On the assumption that POTUS has the power to do so unilaterally, it would be effective a year after the US has officially withdrawn. There is no official presidential order to this effect at present, so we will remain members of WHO until at least 5-31-2021. | It is illegal to marry while you are already married This is the crime of bigamy in all 50 states. A marriage ends with the death of one of the couple, a divorce or (in some very limited circumstances) an annulment. The US will recognise any of these wherever they happen so it’s your choice whether you get divorced in your home country or the US. By the way, don’t cause the death of your husband, that’s also illegal. | It is possible in principle, in the US, under the Bureau of Prison Treaty Transfer program, so that one could serve your time in Australia for example -- but not New Zealand, which isn't part of a bilateral or multilateral treaty with the US: here is the list. Canada and Australia are on the list via the Convention on the Transfer of Sentenced Persons. New Zealand is (by choice) not a participant. | This would seem to fall under "negative" freedom of association; that is, the freedom to not associate with certain other people. This article discusses the matter in the context of individuals who refused to join a trade union: the ECHR decided that the right to not join a union is just as much a part of freedom of association as the right to join one. By extension, if you decide to hold a meeting (which is also part of the freedom of association), then you have the right to exclude people that you don't want to associate with. You might have a problem if you want to demonstrate in a public place: the undesirable people have just as much right to turn up as you do. However if you have had to get police approval for your demonstration (there is a bunch of ECHR law covering that) then you might be able to tell the police that those people are not part of your demonstration, and ask that they be treated as an unauthorised demonstration. It would be up to the police to take appropriate action at that point. | The way "with intent to lose citizenship" works in US law is extremely demanding; it is very hard to establish it by doing anything short of appearing before a consular officer and formally renouncing citizenship. Other ways include serving in the military of a country at war with the US, being convicted of treason for committing one of the specified potentially expatriating acts (serving in an army at war with the US is sort of a trial-less special case of that, because engaging in a war against the US is treason), or serving in a "policy-level position" in a foreign government. The State Department says as much in the link. Obtaining citizenship is listed as a case where the administrative premise applies; so is swearing allegiance to a foreign state, serving in the military of a state at peace with the US, and serving in lower-level government posts of a foreign state. In those cases, the person retains US citizenship but at some point in the future may be asked by the State Department if they wanted to renounce it. Intent to renounce citizenship is established only by explicit declaration if you've only obtained citizenship in another country. With "policy-level posts" the premise doesn't apply, but then the State Department just decides on a case-by-case basis. You may well lose US citizenship (although the King of Thailand was born in the US, and I'm not sure if he's considered to have lost citizenship), but it's not automatic. Your senior ministers may lose citizenship, but it is likewise not automatic. But the normal citizens? The link explicitly says that the administrative premise covers that. | It’s legal under Ukrainian law for foreign nationals to join their defense forces Indeed, this is so common it may be considered the default position internationally: the US, UK, France, and Australia just to name a few all allow this. Generally, it’s usually legal for a citizen to join the army of a foreign state. It is usually not legal to fight for a non-state actor this is where fighters for ISIS are in trouble. Where issues arise is if they take up arms against the country of their citizenship. That’s called treason and it usually attracts the most severe punishment available: death or life imprisonment typically. So, as long as you aren’t Russian and are not from one of the few countries that prohibits foreign military service, there are no legal issues. | Is a country an institution or an entity? Neither. It's a sovereign state (a "political entity", not an entity in the sense of a legal persona). | No, under US law, it is an "executive agreement", not a "treaty". The vast majority of US's international agreements are done as executive agreements, and not treaties; and the power of the executive branch to make executive agreements has been repeatedly upheld in the courts. Specifically, there are two types of executive agreements: "Congressional-executive agreements". These are the ones that require changes to legislation to be implemented. Congress passes the needed legislation just like any other normal legislation, i.e. a majority of both houses of Congress. Most trade agreements are passed as congressional-executive agreements. "Sole executive agreements". These are the ones that do not require changes to legislation to be implemented. Congress is not involved at all. This Iran nuclear agreement is a "sole executive agreement" because it does not require Congressional action to be implemented. (So it doesn't need to be passed by a simple majority by Congress.) The President already has the legal authority to implement all of the US's obligations under the agreement, which are the relief of certain Iran sanctions. Some of those sanctions were implemented by the President, and which the President can remove by himself. Some of these sanctions were implemented by Acts of Congress, but those Acts specifically give the President the authority to waive them. The Iran Nuclear Agreement Review Act of 2015 (the "Corker bill"), passed by Congress in May 2015, also confirms that "It is the sense of Congress that: [...] this Act does not require a vote by Congress for the agreement to commence;" As to your question about whether something can "have the effect of a treaty if it's passed by a simple majority". The answer is yes (in the other way around). The Supreme Court ruled in the Head Money Cases that "treaties" (ratified by 2/3 of the Senate as specified in Article II) have the same legal effect in US law as regular legislation passed by Congress (by a simple majority of both houses), which means that Congress can modify or repeal (insofar as US law is concerned) any "treaty" that is ratified by the Senate, by passing a later law that contradicts it, just like it can with regular legislation. So, yes, any regular legislation passed by a simple majority (including for congressional-executive agreements) has the same legal effect as treaties. |
In Florida, if you are caught with stolen property. But didn't steal the property, can you be charged? Lets say you are walking around your neighborhood and you find a golf cart in the middle of the road with the keys in it. You get curious to see if you can find something with the owners info on it and sit down to look through the cart. As you are looking around while sitting in the cart, the Police roll up and find you in the cart and it turns out it is stolen. Can you be charged for theft of the item, even thou you didn't steal it? | They can charge you with anything they think you did. And yes, the circumstances play a large part in the decision to arrest, charge and prosecute. However, circumstances include you: Reputation is everything. If you are a 17 year old male troublemaker with a long juvie rap sheet, including 3 past instances of stealing golf carts, then expect to be charged with the theft. Honestly you would probably be charged with the theft if you had simply stayed away and called the cops to report it abandoned. If you came upon it in your vehicle and it's obviously blocking the road and your apparent motive is to figure out how to move it so you can get by, then you're probably in the clear. If you're a 44 year old owner of a golf cart business, PAL supporter, city councilwoman and know half the cops including one in the car that stopped you, then, they're going to pretty much listen to you as far as what's the deal with the cart. Probably ask you for help moving it safely, might even ask you to get your cart-hauler to take it to impound. You won't hear from the D.A. obviously; nobody will say "Sue Councilwoman stole a golf cart" because it would sound absurd and make the speaker appear to be a politically motivated liar. That's the power of reputation; no one would speak it even if you did steal it. (Of course if you got caught doing it on a Ring camera, well, the hero takes a fall!) Anything in between, they'll deal with it in proportion to both the facts about you and the fact about the situation. You do not have a right to get the same credibility as the councilwoman; that is earned. That's the power of reputation. | Until it was found to be unconstitutional, Florida had a law against surcharges for using a credit card (the statute is still on the books, however). That was the only law against "convenience fees" related to making payments. Whether or not a business will accept a particular form of payment (check, credit card, money order, traveler's check, cash) is up to business. Apart from credit cards, there has been no law against charging for accepting a particular form of payment, but that charge would have to be part of the contract – the lease would have to specify in advance what the processing fee is for money orders vs. cash vs. credit card. The residential tenancies law of Florida does not prohibit incorporating fees into the terms of a lease (as some states do), so the lease can specify "$1500 for rent plus $10 for payment-processing, every month". | 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). | An officer is allowed to pull you over for speeding and then decline to give you a ticket for speeding. So the lack of a ticket has nothing to do with it (unless you actually weren't speeding, not even 1 MPH over.) Simply having past felonies, however, is not a reason for an officer to be able to search the car. Without a warrant, he'd need probable cause, consent, or some other exception to the warrant requirement. It's impossible for me to say what happened here. Maybe your husband had an outstanding arrest warrant? Maybe the officer saw the gun from outside the car? Maybe one of you said "OK" when he asked to search the car? Or maybe the search was illegal after all? | You give no jurisdiction but in general: First, police have no obligation to be honest. So, yes they can collect this without consent by e.g. taking hair from your hairbrush (with a warrant) or giving you a glass of water while interviewing you and getting it from your fingerprint oils (which may not actually be technically possible but never mind that). No, they can't take it by "force" by sticking a swab in your mouth. Yes, it will almost certainly go into a database. Of course, there are some jurisdictions where police are entitled to decide you are guilty based on the fact that you didn't pay them a bribe. | Presumably, they at least took a report which could make it possible to file an insurance claim for the stolen phone. But, a good faith belief of law enforcement that is unable to figure out who committed the crime with the resources available to them is a legitimate reason not to investigate and prosecute a crime, even in countries with legal systems based upon the German one where prosecutors have an enforceable legal obligation to prosecute criminal offenses known to them. A prosecutor can't bring a case unless he knows who did it. And, the police may be wise not to try to investigate a crime that previous experience has proven to them is a dead end most of the time for a crime of modest economic value. Most cases of simple larceny are never solved. And, institutionally, the police have to balance the cost of investigating the crime against the seriousness of the crime. Murders and kidnappings are almost always going to take priority for police resources over stolen phones, particularly if investigating the phone theft may require international cooperation that makes the investigation more costly. A key point is that the mere fact that a phone is pawned doesn't mean that the person pawning it is necessarily committing a crime, so even if you find out where the phone is in some pawn shop (possibly in Albania or Turkey, by now), that doesn't mean that the job is over. That person could have bought it innocently and at fair market value from a flea market, from someone who could have gotten it from someone who received it innocently as a gift, from a friend of a criminal fence, who may have bought it not innocently from a true thief. In fact, because criminals respond to incentives like anyone else, it is far more likely that the phone was swiftly "laundered" along the lines I suggest in this example, than it is that it is still in the possession of someone close to the thief. But, only the fence and the thief would have criminal liability. It is a lot harder to solve the crime of a stolen cell phone than you would think, and the agency may simply not be able to justify the resources it would take to investigate that case properly to a situation where someone had a phone stole that was worth maybe 400 Euros in used condition. The more you can do to solve the crime, the more likely it is that they will find that it is worth further investigating until a thief can be identified and apprehended. For example, the company with the network that serves the phone might be willing to cooperate with its owner. Also, the more that you can do to show that this case might crack an entire ring of people involved in a black market in stolen cell phones might make it more attractive to law enforcement. | You certainly can't legally steal anything, ever. If it is legal, it is not stealing. In particular, if it is your property, it isn't stealing. The question is really, "is it your property"? This will be jurisdiction dependant. I am familiar with England and Wales, and other common law jurisdictions may be similar. The fact you co-signed for the car definitely does not make it your property. It just means that out of the goodness of your heart, you agreed to reduce the finance company's risk by promising to pay if your ex-friend didn't. In E&W, I don't think it is possible to register a car jointly, but there is a long page explaining that the registered keeper is not necessarily the owner of the car. My guess is that the car probably does not belong to you, so if you take it you will probably end up with a conviction for theft. | No. Your evidence of registration of the car would suffice to show that you are not receiving stolen property, although you are correct that not informing the police that it has been recovered could get you pulled over if the car has been reported as stolen. Given the circumstances of the question, I don't address the means by which the car is repossessed. Not every use of force would be justified to secure the return of the stolen car. Reporting the theft and recover to the police would also make it easier for you to make an insurance claim. Repossession of a car stolen by fraud (tricking you into signing over the car title to them in exchange for Monopoly money in an envelope that you don't check until after they are gone, or for a forged check), which is then sold to a bona fide third party individual for value, however, might constitute car theft. |
Reasonable Attorney Fees IANAL: What is the thought process used to calculate "reasonable attorney fees"? CONTEXT: 718.303 Obligations of owners and occupants; remedies.— The prevailing party in any such action or in any action in which the purchaser claims a right of voidability based upon contractual provisions as required in s. 718.503(1)(a) is entitled to recover reasonable attorney’s fees. The goal is to be able to implement a spreadsheet calculation: one should be able to define the inputs and reasonable and customary constants used in the calculation | I regret to inform you that it is unlikely you would be able to make a spreadsheet to calculate "reasonable atty's fees". You could make one for filing for reasonable atty's fees, but the reasonableness adds in the ambiguity. When I clerked for a Fed. Judge, more or less I would skim through the time spent by the attorney(s) and the time spent by the paralegal(s). Then when considering the case and its complexity (esp. after reviewing all the pleadings, etc.) and it didn't seem especially excessive, I would recommend accepting it. If I thought it was excessive, like they were really milking their claim for atty's fees, I would review more thoroughly. In that case, I would suggest knocking down hours for certain times spent or changing certain activities from Atty to Para, such as "Atty: Check PACER/CMECF for case status - 0.5hr" I would knock down to 0.1 and change to the paralegal, Which could change that one entry from like $300 down to like $60. Do that four times and you get a grand. Same with large times spent "filing" documents, it doesn't take a long time to file documents as long as cmecf is up. I usually wouldn't consider adjusting "skilled" entries, like Analyzing, Drafting, Editing, Strategizing, etc., unless they seems especially egregious (considering case complexity). Also, like commented above, when there are an excessive number of attorneys, the time may get knocked back as the number of hours spent on it may be considered unreasonable. Then, after I went through everything, I would give my bench brief to the Judge, he would likely make changes to it and give it back. Then I would draft the Order, he would sign, and it would be entered. | State law may provide for criminal prosecution for vandalism, which could result in a fine or even imprisonment. The state can prosecute you, private individuals cannot. Fines imposed by a private organization are only enforceable through contracts, where damages could be recovered, but penalties cannot be assessed. ("Late fees" are in the class of "liquidated damages", where the agreement says what the late fee is – they don't just make up a number). Ga. Code § 44-3-223 does require you to "comply with all lawful provisions of the property owners' association instrument", but if it isn't in the instrument, you do not have to comply. | The phrase is added to ensure that a portion of the contract is construed as the parties intended. For example, say the terms of a contract already imply some particular term. To make it clear that this is what the parties intended, they may also state that term explicitly. The problem is, if you specify a term a particular way, a party could argue that interpreting another part of the contract to mean that very same thing would render that portion of the contract redundant and therefore it should be interpreted some other way. The phrase "for avoidance of doubt" indicates a part of an agreement that is intended to restate what another portion of the contract (often in conjunction with applicable law) already implies. The phrase is added to ensure that the restatement won't be pointed to as a way to argue that other parts of the contract should be interpreted differently than intended. It is often used where it's superfluous and there it should be avoided because it will actually do the opposite of what's intended -- implying that what it covers is covered elsewhere when it actually isn't, possibly leading to other portions of the contract becoming ambiguous or subject to misintepretation. | 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. | Criminal cases The answer in the case of criminal charges in the federal system and in the vast majority of U.S. states is that you can almost never recover legal fees you incur defending a criminal action. There is such a thing as a lawsuit for malicious prosecution, and there is such as thing as a lawsuit for a civil rights violation caused by bringing baseless charges, but in both circumstances one must demonstrate that the charges were brought without probable cause. But, in most cases of serious criminal charges like this one, either a grand jury probable cause finding, or a preliminary hearing probable cause finding, both made well prior to a trial, will conclusively preclude a malicious prosecution or civil rights lawsuit. (Also, prosecutors have absolute immunity for their discretionary prosecution decisions, and judges have absolute immunity for their judicial decisions, and you can't sue jurors unless they accepted a bribe or something like that.) But, the standard of proof necessary to establish probable cause is much lower than the standard of proof necessary to convict. A very small minority of states allow for reimbursement of fees upon an acquittal, but even then, it is often necessary to prove by a preponderance of the evidence that you were actually innocent, so a dismissal on procedural grounds or an acquittal at a criminal trial where the prosecution must show beyond a reasonable doubt that you are guilty, is not sufficient to show that it is more likely than not that you are innocent. Likewise, you are not entitled to recovery for indirect financial damages caused by criminal charges. As you correctly imply, this is a very harsh rule that can mean that wrongful criminal charges can ruin you. On the other hand, if you are unable to afford an attorney, and a public defender is appointed for you by the state, you do not have to reimburse the state for the public defender's fees if you prevail and are acquitted. A minority of states, however, require that you reimburse the state for the public defender's fees if you are convicted along with other court costs, fines and restitution awards. For what it is worth, only about 1% of criminal charges brought result in an acquittal at trial. Most cases are resolved through a pre-trial plea bargain, a voluntary dismissal by a prosecutor who acknowledges that there is no case against you prior to trial, or a conviction of at least something at trial. About 10% of cases go to trial and about 10% of cases that go to trial result in an acquittal or hung jury (in very round and approximate numbers that vary greatly from jurisdiction to jurisdiction and by type of case). Also, probably at least 10% of acquittals are of people who were factually guilty, because juries get it right something on the order of 90% of the time when cases go to trial. But, the vast majority of acquittals result in a vast injustice to the defendant (although not as great as when a judge uses the factual basis of the events from which you have been acquitted to enhance the sentence against you on other charges which is done from time to time in both the federal and state legal systems in a practice that is unfair but not necessarily sufficient to overrule those sentences on appeal). Civil cases The situation in a civil case is different and too broad to answer in one question. There are some civil cases where a prevailing defendant is entitled to attorneys' fees and costs, while there are others where a prevailing defendant is not. The default rule, called the "American Rule" is that a prevailing attorney is not entitled to attorneys' fees and costs of a defense. But, there are myriad exceptions to that rule that vary by type of case, by the particular details of how a case was prosecuted, and by legal jurisdiction within the United States, that are not easily summarized. For example, in Colorado civil cases, some of the more common grounds for an award of attorneys' fees to a defending party are: (a) a two-sided contractual fee shifting term, (b) dismissal of the case before filing an answer for failure to state a claim when tort claims were asserted, (c) a determination that the suit was groundless, frivolous or vexatious, (d) violation of certain rules relating to disclosure of information to the other party, (e) a statutory fee shifting provision in the case of a claim based upon a statutorily created right which is present in some statutes but not others. | 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). | Tortious liability in France Every act whatever of man that causes damage to another, obliges him by whose fault it occurred to repair it. We are responsible not only for the damage occasioned by our own act, but also by our own negligence or imprudence. Note that my French isn't good enough to read the code and translate it myself; I'm relying on this translation. French Civil Code Articles 1382 and 1383 provide for damages to be awarded for tortious acts, and specifically, liability for negligence. French Civil Code Article 1384 provides for vicarious liability: We are responsible not only for the damage caused by our own act, but also for that which is caused by the acts of persons for whom we are responsible, of by things that are in our custody. ... Masters and employers, for the damage occasioned by their servants and employees in the exercise of the functions in which they are employed. Based on my reading of this, it would seem that the owner of the business would be liable for damages caused by their neglecting to keep their premises safe. It's possible, however, that there is provision for a claim to be dismissed if it can be show that the plaintiff was unusually susceptible or fragile unless the defendant is aware of this fact - for instance, if a normally-capable person would not have slipped on the floor, it might affect the outcome of the claim. However, this is a principle of common law, not civil law, so I'm unsure of this will apply here. However, in short: it appears that a business would have a general duty not to cause harm to its patrons. | The government must have reasonable suspicion to stop you and ask you questions. The government must have probable cause to arrest you. The government cannot question you if you have invoked your 5th Amendment rights The government must release you if you post bail which is set by a magistrate in some cases but can be posted without conferring with a magistrate for many minor offenses for which the amount is set in advance. Also, you can only be constitutionally held for a certain period of time without appearing before a court for an initial appearance at which you are charged and typically you have an attorney assigned for you if you cannot afford one. Generally speaking a lawyer for a defendant will either post bail on behalf of the client, or will seek to invoke the client's 5th Amendment right to silence and 6th Amendment right to counsel (including the right of a lawyer to visit his client in jail) making further detention much less useful, while challenging law enforcement to articulate probable cause for the arrest with the implication that a civil lawsuit and suppression of evidence and loss of credibility with the local judge could follow if they fail to do so. If the client is not brought before a court by the constitutional deadline (unusual, but not unheard of), the lawyer can bring this to the attention of the court and have the court demand that his client be brought before the court. Of course, strictly speaking the defense lawyer can't force the police to do anything. Instead, the defense lawyer persuades the police to do something based upon what a court is likely to do, or has already done, as a result of their conduct so far. Also, of course, it isn't always possible for a lawyer to get his client out of jail. If the police do have probable cause and the offense is not one for which bail is set in advance, it is not possible for the client to be released until bail is set by a judicial officer such as a magistrate and bail (if granted at all) is posted, which may be beyond the client's means in the case of a serious offense, particularly if the client is considered by the magistrate to be a flight risk. On TV and books, the person that the police have arrested is usually someone that the police had no probable cause to arrest but suspect of a crime anyway, and the police usually fold when called on the fact that they lack probable cause by the lawyer. Less commonly, on TV and in books, the lawyer facilitates the payment of bail on behalf of his client. |
Can an employment agency enforce a clause forbidding those who work for it disclosing for which companies they have worked? This answer on S.E's "the Workplace" says The employment agreement might prohibit disclosing the names of specific clients. To what extent is that legally enforceable? I can understand that I may not be allowed to say on my CV/resume that I worked for certain government departments, but how is it in general? Further, I can see how a government department can, and can require the agency to pass that requirement on, but I do not believe that such a clause by an agency would hold up, as it is liable to deprive the signer of the the means of earning a living. Can Agency, Inc really take legal action if my CV and my statements at interview say that I worked at (not for) BigCompany, Inc, on a contract basis? As per my answer to Working for a big company “through” another small company. Can I say I'm working for the first? If you want to keep you conscience clear(ish), you could always say "I work at BigCompany, Inc" and let others draw their own conclusions. I will enlarge a little. I have been a software contractor for much longer than you have been alive, and use "I work for" since BigCompany gains from my work (more than the middle-man); they use the software that I develop, while the agent only takes a cut. But, the important part here is where you ask Now, the question is, am I wrong in writing on my resume that I'm a consultant for BigCompany? You could do that. 2017 - 2109 BigCompany, Inc, Position: consultant Personally, I put 2017 - 2109 BigCompany, Inc, Position: senior software engineer But I would never, ever, ever name an agency on my CV. The reason is that hiring managers in the industry can gauge your suitability from companies where you have worked. So, having experience at British Aerospace is of interest to a hiring manager at Boeing, etc It may also be worth mentioning that I am security cleared in Europe and work on sensitive government/military projects, and find risible the idea that a potential employer not be allowed to know of my employment history. Tl;dr - can an employment agency enforce a clause forbidding those who work for it disclosing for which companies they have worked? I have added aunited-states tag, as that is where the original question is based. | They likely can. This information would likely fall under an NDA (Non-Disclosure Agreement) clause in the contract with the contracting company. The other clients of the contracting company could be considered confidential information, e.g., a client list, which can be covered by an NDA. An NDA will usually have a term for duration and a term for breach consequences. However, it is unlikely that an NDA would apply to prevent disclosure of other companies if the contracting company posts [all? | some?] of their clients publicly, such as in advertisements or blog posts online. For some more information, you may check out this post from LegalTemplates. | The basic requirement is that any communication using the trade name be possible to trace back to the LLC using the trade name, either with a disclosure in the communication itself, or with a trade name (a.k.a. doing business as a.k.a. dba) registration that links the trade name to the entity in the public record. If this is not done, business conducted in the trade name may be treated as a sole proprietorship or general partnership of the people actually conducting the activity, rather than an activity of the limited liability company behind it, thus depriving those people of limited liability protection. | I did not write "confidential" on my letter, but I assumed a business proposal is automatically considered as a confidential material. An incorrect assumption unfortunately. Unless you have a confidentiality agreement (NDA) with the first company, they and their agents are not under any legal obligation to keep information you share with them confidential. How is the legal situation here? There is none on your side. You lied about a direct question asked and were caught in the lie. Company A had no obligation to keep what you sent confidential. Even if they did, that may not (depending on how the confidentiality agreement is worded) keep the employee of company A stating that they had received the same proposal. Chalk this one up to a lesson on confidentiality and honesty in business. There are no reasonable assumptions of confidentiality in business unless you specifically state that they are confidential or are provided as part of a confidentiality agreement. | If I have correctly untangled the law, Schedule 2 of the Data Protection Act part 3 identifies as a condition where you are not prohibited from revealing personal data: The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. The Animal Welfare Act 25(1) says An inspector may require the holder of a licence to produce for inspection any records which he is required to keep by a condition of the licence I can't tell if you are required to keep customer names, but if you are, it looks like the pieces fit together and you would have to provide the records. Call a solicitor to be sure, though. | The inventor or would-be developer can require potential investors to sign a non-disclosure agreement (NDA) before revealing the details of the idea. In an initial letter a statement such as "This idea is being disclosed in confidence to enable4 you to consider if you wish to invest in the project." That would put the investor on notice, and if the investor discloses it to another or makes use of the idea in a competitive project, there may be grounds for a suit for breach of confidence. If reasonable precautions are taken to disclose the information only to those under a duty of confidence, and to protected it from unauthorized disclosure, it may be protected as a trade secret, and any evasion of those precautions or breach of confidence may give grounds for a lawsuit. In the US the Uniform Trade Secret Act has been adopted by almost every state. In other jurisdictions there are other similar laws. As stated in the Wikipedia article A trade secret is information that is not generally known to the public; confers economic benefit on its holder because the information is not publicly known; and where the holder makes reasonable efforts to maintain its secrecy. | In answer to your questions, always get potential clients to sign a contract which covers the GDPR personal data processing requirements at a minimum, prior to giving them a copy of a consultant resume to retain. If you were sat in a meeting with them it is much simpler to record in your logs that the client had sight of the resume but was not left a copy of it in any format, than it is to keep track of which clients have a copy of which data and chasing up to ensure it is erased/destroyed when appropriate. To ensure clients treat the resumes as confidential, make sure they are labelled in the header and footer as confidential. They could also be kept in an envelope clearly marked confidential. There could also be a footnote in small print that informs anyone with a copy, who the data controller is, and that processing is strictly subject to the terms of the 'client contract' or whatever you call it, and that it should be returned or shredded within X days of receipt for example. If you have a computer system generate these it could even specify the client's name and the specific date it should be shredded by. Your notice could include a reminder that the personal data is protected under the E.U. General Data Protection Regulation (GDPR) 2016 and that (client name) as a data processor could be held liable in the event of unauthorised disclosure or processing, if they act outside or contrary to lawful instructions of the data controller. Whilst this won't enforce responsible processing at least it will ensure that your business has done its best to ensure any recipients are fully aware of their responsibilities to protect the information and it would be very difficult for a client to claim they weren't aware the information was confidential or that they had legally binding responsibilities to protect it. It's also worth noting that simply sending CV's/resumes (or other personal data) out via email (unless suitably encrypted) would not meet the requirement in GDPR recital 39 for personal data to be "processed in a manner that ensures appropriate security and confidentiality of the personal data, including for preventing unauthorised access to or use of personal data and the equipment used for the processing." Email technology whilst convenient does not offer any guarantees regarding privacy and confidentiality, therefore instead of sending resumes as email attachments it might be better to use a web-based extranet system which authenticates users before granting access to view resumes. Emails could just let clients know there is a new resume or X number of resumes waiting for them to review and give them a link/button to login. The records of processing activities are in GDPR Article 30 on page 50, and it does not specify a retention period nor that we can choose the retention period, but simply states that data controllers make the records available to the supervisory authority when requested to do so - this may imply indefinite retention of processing records even beyond the life of the processing system (e.g. discontinued products/services), however we may need to await further clarification on this issue from supervisory authorities to be sure. | What follows is a broad overview. I'm not an expert in this; I just have a bit of experience in this due to a tax situation my wife & I experienced a few years ago. Please do not rely on this advice except as a starting point for more Googling. Your obligations (and your assistant's) will depend on whether the assistant is an employee or an independent contractor. In general, an independent contractor is someone you hire to "get a job done"; you have minimal control over the manner, time, place, tools, etc., that the assistant uses. An employee, on the other hand, is someone you hire to come to work at a particular time and do the job a particular way. (I'm glossing over some details here; see the IRS link above for more details.) If your assistant is an independent contractor, and you pay them over a certain threshold ($600 for 2020), you must provide them with Form 1099-MISC, and file a copy with the IRS as well. Your assistant will then be liable for income taxes on this amount, as well as self-employment tax (see below.) If your assistant is actually an employee, and you pay them over a certain threshold ($600 for 2020), you are required to provide them with a W-2 form, as well as filing a copy with the IRS. In addition, if you pay them more than a higher threshold ($2200 in a tax year or $1000 in any quarter for 2020), you are responsible for withholding taxes from their paychecks, as well as paying the employer's portion of Social Security, Medicare, and/or federal unemployment taxes. How to figure these taxes is complex, but generally the employee must provide you with a completed W-4, and then you must provide them (and the IRS) with a W-2 at the end of the tax year. See Publication 15: Employer's Tax Guide for all the gory details. The self-employment tax is designed to effectively cover the employer's portion of these taxes for self-employed workers. As you might imagine, employers are often tempted to misclassify employees as "independent contractors", since this means that this tax liability gets pushed from them onto their workers, as well as just making the employer's life easier. The Feds will not take kindly to such misclassification if it is discovered. Finally, for the state of Connecticut, consult the CT 1009-MISC filing guide (if your assistant is an independent contractor) or the Connecticut employer's tax guide (if they are an employee). The distinction is pretty much the same as at the federal level. | Anything that helps you with your business and that you keep secret is a trade secret. The "keeping it secret" is an important part. Competitors are free to discover the same information themselves and use it, but stealing it from you is illegal. If a contractor needs to learn this information to do their job, you make them sign a non-disclosure agreement or confidentiality agreement which forbids them to pass that information on. That way, it remains a trade secret. If the contractor gives your trade secrets away, that is breach of contract and you can sue for damages. If a competitor pays your contractor to give them your trade secrets, that's not just illegal, it's criminal. On the other hand, if the contractor puts the information on his blog for example where everyone can read it, without having been enticed by someone to do this, then I believe your trade secret is gone and competitors can use it. Same as if you left documents on a park bench and your competitor finds them and reads them. You have to keep a trade secret a secret; if you fail to do so you lose. Asked about patents: If there is a non-disclosure or confidentiality agreement in place, then nobody can apply for a patent. The whole idea of a patent is that you get legal protection in exchange for disclosing your invention. Applying for a patent would mean violation of the non-disclosure agreement. |
Can I use whole poems from classic writers in my book? I'm writing a non technical book and would like to add a poem in one of my chapters to emphasize an idea. Any work published before 1924 should be safe to use, but since copyright law is just full of lots of gray areas, I was wondering about the following items. Can I use something like a poem from Anton Chekhov for example? He wrote his poems before any copyright laws, so logic would dictate it's safe to use (although law and logic don't always mix). It's not actually a poem from Chekhov, but I'm using him as an example because of the fact he didn't write in English, which gets me to my second item. Can an English translation of Chekhov's poems be protected by copyright? My book is written in English so I'll use an English translation. I was unable to identify who translated the poem so can someone claim the rights to the translation? Since it's a translation, it's not actually a new creation, right? And finally... When large publishers print poem volumes, say some publishing company releases a book with all of Chekhov poems, how do they deal with the copyright? Can they just use the work? Do they now own some sort of rights on Chekhov's work? Does it differ if they publish the original work in Russian or if it's translated? | The first copyright law dates from 1710, so it's not true that Chekhov wrote before any copyright laws. Any work from prior to 1924 isn't necessarily safe to use (it depends on when the author died). It is in the US but will complicate things if you publish internationally. Unless you translate with something like Google translate, translation is definitely a creative process. This is especially true (although probably not significant legally) for something like a poem, where its' extra hard if you try to keep the original metre and rhyme scheme. If you publish work in the public domain, you would have some claim to the typography. If the translator has done a copyright assignment to the publisher as part of the publishing agreement, they would hold the rights to the translated version. | It depends on where you are For example, in USA copyright exists in a literary or artistic work stored in permanent form like a book, a movie, an audio recording, a building etc. In contrast, in Australia there is no requirement for the work to be stored - that means copyright can exist in a spoken lecture. The owner of the copyright (usually, but not necessarily the creator) has the right to choose if and how their work is copied and if and how any derivative works may be made from it. For your example, the book is an original work in which copyright vests with the author(s), your notes are a derivative work in which copyright vests in you. However, you presumably did not have permission to make your derivative work so that makes it prima facie a copyright infringement. Fortunately, in the USA there exists a Fair Use defence and in Commonwealth countries the slightly less permissive Fair Dealing defence (if you are somewhere else you will need to do your own research). Search this site or read the copyright article on Wikipedia to learn about these defences. Long answer short (too late!), taking notes to aid your own study is almost certainly Fair Use/Dealing. So is sharing it with your friends. Publishing it may or may not be depending on all sorts of factors; for example, if you were to write a study guide for say a Harry Potter book for use by English literature students this is probably OK even if it is a for profit activity, because criticism is Fair Use/Dealing. Citing work is not necessary to comply with copyright law. Failing to cite may be academic misconduct but that is not a legal matter; its a matter for your academic institution. | From your question(s), as well as your various comments, I understand you to have two general inquiries: 1. Is there any infringement of copyright laws if you use things like the titles of books, games, apps, names, address (and any other number of things) which you will then put into datasets that will be licensed for proprietary commercial purposes? You may freely put titles, names of people, places or things into datasets without fear that you are infringing on copyright or any other laws. That is clear. Copyright law does not protect names, titles, short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive it cannot be protected by copyright. So, there is no point in discussing the doctrine of fair use in this context, because Fair Use is a defense, or a legal safe harbor that is merely an exception to copyright infringement allowing people to use a copyrighted works under specific circumstances. As I understand your intended endeavor, you will not be infringing on any copyrights to the extent that you are merely using factual data, like names of copyrighted things for the purpose of creating a dataset or an application to help access it. This is why I say you need not concern yourself with the test for Fair Use with regard to this issue. The Copyright Office states clearly, despite what people may think, that there are no exclusive rights in brief combinations of words such as: • Names of products or services • Names of businesses, organizations, or groups (including the names of performing groups) • Pseudonyms of individuals (including pen or stage names) • Titles of works • Catchwords, catchphrases, mottoes, slogans, or short advertising expressions • Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable. Hence, these things are not registrable under a copyright. While something may be potentially attached to or included in copyrighted material, is not in and of itself subject to the protections of these laws. If it (whatever it is) cannot be registered for a copyright, it is not copyrightable. Because copyright registration/notices have been optional since 1989, when the U.S. attached itself to the Berne Convention, whereby copyright protection is automatic as soon as a work is “fixed in a tangible medium of expression” (written down, recorded, painted, etc.) it’s protected. No notice is required. Registration only becomes required for litigation or enforcement purposes. But this is really extraneous to your inquiry anyway, as far as it applies to the actual data. When you get into copying whole databases for your purpose, that analysis is different. 2. You want to "scrub" the internet for information that you intend to put into your proprietary datasets and use for commercial purposes, some or most of which is already in a database or some organized form, and you want to know if there is some sort of copyright or duty owned to the person who originally databased the materials? Since ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection, if you want to compile this type of information from the internet for the purpose of creating datasets, or searchable databases, this is permissible. That said, there are protections for existing databases under copyright law, provided under the concept of a "compilation copyright". A compilation copyright protects the collection and creative assembling of data or other materials. Compilation copyrights protect the collection and assembling of data or other materials, such that databases are generally protected by copyright law as compilations. Under the Copyright Act, a compilation is defined as a "collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship." 17. U.S.C. § 101. The preexisting materials or data may be protected by copyright since the selections of materials and the form they take in an existing database may be original enough to be subject to a copyright. However, the data itself is merely information and is not protectable. The Copyright Act specifically states that the copyright in a compilation extends only to the compilation itself, and not to the underlying materials or data. 17 U.S.C. § 103(b). As a result, "compilation copyrights" can't be used to place protection upon those things that are otherwise not protectable. In the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc., the U.S. Supreme Court ruled that a compilation work such as a database must contain a minimum level of creativity in order to be protectable under the Copyright Act. Feist makes clear that even a copyright protected database does not hold the right to prevent an individual from extracting factual data from the database (so long as you're not copying the entire database as a whole). If you take an already compiled and copyrighted dataset in its entirety, you must obtain a license for its use. However, if you are merely amassing great amounts of data to then put into your own dataset, that you are free to do. The big issue will be (and you seem to realize this) where you will amass this data from. Some websites have specific licenses in place that say you cannot use or rework their content. However, many times these websites simply throw these license requirements out there for users to see, despite the fact that they may not be (and some would argue) are not enforceable. The courts have heard arguments that "contracts" (the end-user licenses) that protect databases and information on websites is beyond the protection available through copyright law should be "preempted" by the Copyright Act itself. The preemption argument goes like this: Federal law controlling something that is subject to interstate commerce or use, should be controlled by the federal laws. So,since the federal government has enacted the Copyright Act to govern any protections to any original works, states should be (arguably are) prohibited from having contradictory laws. Because of the ability of a federal statute to preempt state law, and the fact that the Copyright Act at 17 U.S.C. § 301 sets forth specific preemptions, no state may create rights that are equivalent to any of the exclusive rights provided under the Act. It is this concept of preemption that prevents copyright protection from varying depending upon the state where a work of authorship is created. Arguably, the same is true for the internet, and supposed contractual relationship created through licenses that dictates how non-copyrightable material may be used. In the case of ProCD, Incorporated v. Matthew Zeidenberg and Silken Mountain Web Services, Inc. the court examined whether an end-user of a CD ROM phone database was subject to the license, when they extracted a large portion of the database and made it available over the Internet. The database was almost the same as the type of data in the Feist case-The lower court rejected all copyright claims and found that the shrinkwrap license that controlled the end user's right to use the data was both unenforceable (as a shrink wrap license) and preempted by the Copyright Act. As a result, there was no relief available to the creator of the phone database and the end-user was free to extract the data and use it as he saw fit. However, on appeal this decision was reversed (7th circuit). The appellate court did acknowledge that the database (on the CD) was not original enough to be protected by copyright (finding no copyright infringement by the end-user); However, they did find the end-user was breach of contract, since the shrink-wrap license prohibited the end-user's conduct. What this tells us is that these licenses (on websites) may or may not be enforceable. While the 7th Circuit found a contract right pursuant to the license, despite the preemption argument, another appellate court that is more liberal may find otherwise. Also, this was a disk, not the internet, which is the "wild west" of information, largely unregulated and unlitigated as it pertains to the legality and enforceability of (some) regulations that do exist. License agreements for site use on the internet are everywhere. If you take a database from some site that has a license saying you cannot take their work and add to it, or whatever, and you do add it to other databases that are not licensed and then make your own dataset - chances are you are NOT going to be infringing on anyone's copyright. That said, you may be in breach of contract (the license) if they find out about it, and sue you (using it doesn't put you in breach; only getting sued and having a court determine you're in breach puts you in breach. It may be a distinction worth contemplation, but that is up to you). The safest, bet would be to get a license from them to rework the materials. If the material is generic enough, and will be changed enough, that you are creating your own new (copyrightable) work - I'm not sure how they would know you "scrubbed the data in contravention of their license agreement ( I have NO CLUE if there is coding or metadata attached to it such that it's identifiable in that way. I have not tech background and do not endorse taking what's not yours). But if they can and do know, they could cause problems for you. Lastly, I will just say that the internet is littered with sites that claim copyrights, or impose unenforceable licenses on material that is ripe for public use. Just because it says it's theirs does not make it so. The inverse is also true. Just because a site does not claim copyright to something, does not mean it is in the public domain. I would recommend either sticking to public domain/use sites for your scrubbing endeavors, or seeking permissions from the sites who impose licensing requirements. Short of that, I would recommend (as I already have) seeking an formal legal opinion to say that you are not imposing on anyone's copyrights (this could only be done once you showed an attorney every place you took material from, as well as what the material is), and that the licenses from sites with generalized information that may try to limit use, are unenforceable. I would do this before you invest a lot of time or money into something that is largely based on the accumulation of other peoples work product. I wish there was an answer certain, but there just isn't without seeing everything in the end. | The easy part is whether there is copyright protection: yes. It does not matter whether the quotes are in a newspaper, a personal blog, a hardbound book, or on TV; it doesn't matter if the interviewee is right-wing or left-wing or wingless. An interview is protected by copyright. The question is, who holds that right, and in what exact manner? The interview could be a collaborative work; it could be a joint work; it could be the property of the interviewer. In Taggart v. WMAQ, the court points out that for a work to be protected (sect. 101 of the copyright act), it must be ‘fixed’ in a tangible medium of expression ... or otherwise communicated for a period of more than transitory duration. which interviews are not (assuming the answers were not pre-written). See also Falwell v. Penthouse. The interviewer would own copyright to the compilation of quotes, see for example Quinto v. Legal Times of Washington Regardless of who owns the copyright in each of the quoted passages in the article, there can be no doubt that Quinto owns the copyright in his compilation of the quotations As to ownership of the quotes themselves, Suid v. Newsweek Magazine observes that The author of a factual work may not, without an assignment of copyright, claim copyright in statements made by others and reported in the work since the author may not claim originality as to those statements and Harper & Row v. Nation Enterprises, 471 U.S. 539 likewise states that an author may not claim copyright in statements made by others and reported verbatim in the author's work What we get from this is that the interviewee cannot claim infringement by the interviewer (they could however claim some form of breach of contract, depending on what the parties agreed to in carrying out the interview), that the interviewer does own copyright of the interview, but not the specific quotes from the interviewee. This leaves unanswered a core question: can an interviewee claim control over their quotes and deny permission to reproduce the quotes? An alternative would be that the quotes are "data" which are in the public domain. I find the latter outcome extremely unlikely, but at any rate, I know of no case law on point. | They have copyright in their additional text, and possibly in things like their visual design choices (fonts, layout etc). They may also have introduced a few deliberate typos to detect any literal copies from their version (rather as mapmakers add a few imaginary features to their maps). None of this creates any rights to the original text. You are still free to produce your own copies of the original text. Just get it from some other source so you can be sure not to include anything of theirs. | The audio book would probably be an infringing derivative work because the client could redistribute it once the client received it. It sounds very much like a product that is regularly sold by merchants relying on copyrights. Conceivably, simply reading a book aloud to a client in some sort of streaming context that could't be shared with others or replayed would merely be fair use, much like hiring a baby sitter to read a book aloud to your children would be clearly fair use. If there were an automatic text to sound converter as opposed to an individualized performance, it might not be considered infringing. There are people with programs that do this who haven't been sued, but the boundaries haven't been explored very thoroughly. Honestly, there isn't a lot of guidance in this area from statutory language, and the questions would often not be guided by much case law involving similar facts. Your intuition living in the modern world is probably almost as good as a lawyer's in this situation. | You would be in poorly-tested waters under US law. The invented name "Cthulhu" as appearing in a novel is not protected by copyright. A collection of invented names and other words assembled into a dictionary (e.g. of Klingon) might be found to constitute a copyright-protected creative work. In Paramount Pictures v. Axanar Productions (complaint), plaintiffs partially base their claim on infringement of language; defendants sought to dismiss the suit on various grounds ("questions of law" rather than questions of fact), but the court denied defendant's motion for summary judgment. Subsequently, defendants settled the case. Constructed languages are highly creative expressive works whose elements are deliberately selected for an artistic purpose, and they are not naturally-occurring facts. The copyright office has no position on copyright protection of a constructed language, and any such position would have to come from so-far non-existent (definitive) case law. The dismissal in Paramount v. Axanar doesn't clearly indicate that a constructed language is protected. The primary legal question would be whether the database that you copy into your system is protected. There is a colorable legal argument that a collection of language-like objects. The statutory language in 17 USC 102 does not specifically preclude protection of a wholely-creative database, and the copyright office does not say whether a conlang can be protected because the courts have not ruled one way or the other. The situation in Feist is very different from the case of a work which invents a language from nothing. | 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. |
Is there protocol for US police officers for handling a fellow cop that is using excessive force? If I'm a police officer in the United States and my partner is restraining a suspect with an excessive or otherwise out-of-protocol use of force, what am I legally allowed to do to stop him? | As mentioned in a comment by @Dancrumb, the exact policies of each local police department will be different, and there are thousands of them. There is a relevant requirement at the Federal level according the Department of Justice, but it is not clear to me to what extent this applies to peers and not just supervisors: An officer who purposefully allows a fellow officer to violate a victim's Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them. | There is pretty much never a right to retaliate against harm to oneself, even blatantly unlawful harm. There is a right to defend oneself and others. One can use force to stop someone from inflicting unlawful or unjustified harm, or to prevent someone from inflicting such harm when the harm is imminent. One is not permitted to use more force than is "reasonably required" under the actual circumstances. This is true in pretty much every jurisdiction that i know of. The details on how much force will be considered "reasonable" will vary. In some jurisdictions there is, under some circumstances, a s"duty to retreat". This generally means that if a person attacked can avoid the harm by fleeing with reasonable safety, that person must do so rather than using force in self-defense. In some jurisdictions this "duty to retreat" applies id the victim is attacked in public, but not in the victim's own home. The right to self defense does not apply when the "attacker" is an agent of the state acting lawfully. For example, a prison guard taking a condemned prisoner to a death sentence cannot be attacked on the grounds that the prisoner is engaging in self defense. In theory a police officer engaging an excessive force, particularly unjustified deadly force, may be resisted in self-defense. But courts are quite reluctant to find such resistance justified in practice. There generally must be very clear evidence of egregious misconduct for the court to rule for the non-police person in such a case. Note that "self" defense can equally be defense of another person. Pretty much all the same rules apply. Self defense applies no matter who the attacker is, but that force is reasonable may vary depending on the attacker. Only such force as is reasonably required to stop or prevent the harm may be used with a justification of self-defense. | england-and-wales Initially, one should comply with the officer's instructions as he has the power under statutory Stop & Search powers to detain someone for the purpose of the search (discussed here). Failure to do so may be an offence. If, subsequently, one considers the search and detention was unlawful, the first port of call is to lodge a complaint with the relevant police force who - depending on the circumstances - may escalate the complaint to the Independent Office for Police Conduct IOPC. You can complain directly to the police/other organisation (see ‘Who can I complain about?’ below for a list of the other organisations) or via the IOPC. If you complain via the IOPC, your complaint will be sent direct to the organisation involved. They will assess your complaint and contact you about how it will be handled. The IOPC will not be involved with this initial assessment of your complaint. If the complaint is found to be valid, then any offence committed by not complying with the office would (in all probability) be overturned on appeal. As well as any compensation awarded by the court, the Chief Constable may consider making an ex gratia payment (mentioned here). Note that there is no obligation to do anything if the interaction falls within the Stop & Account provisions. | 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. | It is premature to judge the particular case because the facts are not all available. But we can address the general principles. The Model Penal Code 3.04(2)(a) sets out the general principles clearly. A person has the right to self-defense against unlawful force. But, the use of force is not justifiable to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful. But more specifically under (b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat However, there is a further condition that force is not justifiable if the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take Then finally, §3.05 says that this goes for people using force in defense of others. The short version is that the common law right to resist illegal arrest has been supplanted by a statutory requirement to submit to police authority, for example in California and New York. In Ewumi v. Georgia, defendant was illegally arrested and physically defended himself, which resulted in a battery charge and conviction. The battery charge was overturned because the arrest was illegal ab initio. If one resisting an authorized arrest, where an officer's force is likely to result in unjustifiable great bodily harm, the question is whether a reasonable person would find it necessary to resist in self-defense. It is unusual for the courts to find that to be the case. Minnesota law says that reasonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist: (1) when used by a public officer or one assisting a public officer under the public officer's direction: (a) in effecting a lawful arrest Other sections say that a person who is not a public officer may use force to effect an arrest, or, "(3) when used by any person in resisting or aiding another to resist an offense against the person". Being arrested by the police is not an offense, and none of the other justifications for use of force apply. | TV shows like COPS will have the arrestees/suspects/bystanders/victims sign a waiver to appear on the show, along with anybody else that they film in the process, otherwise the faces will be blurred, or removed from the show entirely. Additionally you can tell the camera crews that they are not allowed in your home. If they do enter your home without permission, you can sue them for trespassing. It should be noted that those shows are often edited for drama, and as such seem much more dramatic than it is. The film crews may spend weeks or more (400 hours of video) just to get enough "good stuff" for a 22 minute episode, and then make it look like it all happens over the course of an evening. As for the moral/social acceptance of a lack of privacy, that question really isn't on-topic here. This should be the same for any other "COPS-like" TV/youtube show, but there are some shows out there that don't take the rules as seriously as others. Those usually operate under the "who we are filming probably can't afford a lawyer" mentality so they keep going until they get sued. | Self-defence has nothing to do with whether you are performing an arrest (lawful or otherwise) Self-defence is a plea that you used reasonable force to protect yourself, others and in some jurisdictions, property, from immediate harm. There is, as you say, a “whole spectrum” of both the perception of the threat and the force used that go into determining if the actions of the defendant amounted to self-defence or not. That’s why it’s up to the jury to decide on a case by case basis. A person who has the power of arrest (law enforcement officers and citizens who actually witness a crime) is authorised to use reasonable force to effect that arrest. Of course, effecting an arrest may cause a situation to escalate to the point where self-defence becomes an issue. | Anyone can be arrested, as long as the police (and in some cases, anyone) have probable cause to do so. This generally includes two points: You are in the process of committing a criminal act The police have probable cause, generally through evidence, that you are in the process of, about to, or have committed a criminal act. This usually requires obtaining a warrant for the arrest. However, it's important not to conflate searches with arrest. Arrests are when you are being taken into custody for the reasons mentioned above. Searches are when your personal belongings (i.e. property), are searched to collect evidence. It is not up to police to convict someone. This is the job of the judicial system. There's a bit of terminology here: convictions basically mean being found guilty of an offence. Police don't have the ability to convict someone of an offence. They do have the ability to arrest, and charge with an offence. To charge someone with a crime basically means to accuse them of having done something. Now let's get to the actual crime. Since you haven't mentioned a specific jurisdiction, I'm going to use Canadian cases and law, but in general, it should apply worldwide. If the police have reason to believe that you are engaging in unlawful hacking-related behaviour, then they have the authority to arrest you. They simply need to have a reasonable belief that you are engaged in the crime. Something such as connecting you with an IP address and connecting that you were online at the time is enough. If the police need to find out more information (which they generally do, to investigate further into the matter) - they can obtain a search warrant afterwards. With this, they can legally search into your computer, and investigate. Any evidence that they collect can be used in court. I've recently done some research into cyber crimes. One rather infamous case involved the attack on multiple large scale websites, including Dell, Yahoo, and Amazon, in 2000. This sparked a large scale investigations, between the RCMP (Royal Canadian Mounted Police) and the FBI. The attacks were claimed by some to cause nearly 1.7 billion dollars of damage. The hacker was charged with 58 different offences. You can imply from the linked article that he was arrested before his computer was searched. |
Can a patent attorney steal your invention in initial consultation? I disclosed my invention with a patent attorney on my first free consultation to understand if it is patentable and get advice. The patent attorney told me that I can disclose it because they are legally bound to confidentiality because of their job. However we didn't sign anything yet and we had a remote video consultation due to the coronavirus lockdown. I have registered the conversation, is that enough to protect my invention? Should I avoid disclosing my invention with patent attorneys on initial consultations next time? | Your lawyer owes you a fiduciary duty A fiduciary duty[ is the highest standard of care in equity or law. A fiduciary is expected to be extremely loyal to the person to whom he owes the duty (the "principal") such that there must be no conflict of duty between fiduciary and principal, and the fiduciary must not profit from their position as a fiduciary (unless the principal consents). Legally, you can trust a fiduciary more than you can your own mother. | From what I can see on the USPTO registry, "tweet" is still not trademarked for the purposes you're talking about. Twitter has been working to secure that trademark, but I can't find any record of them having actually secured it. Just the same, I'd predict that using it will get you at least a cease-and-desist letter, and possibly a lawsuit. Whether you'd win that case seems to be a very open question, but that presumes you have the resources to litigate. | Tell whatever lawyer is drafting the "official paperwork" about the problem and ask if it is covered or if you need to change the text or add a rider. If neither company competes, a mutual release/license of existing shared code should be perfectly manageable for an experienced attorney. | I have already contacted a lawyer and paid all the money I had and they didn't help me resolve anything, the guy just talked to me for a little bit. He essentially just took my $600 and no action was made. He said the best thing to do would be to wait it out because the contracts were never fulfilled by them and they can't claim my inventions etc if I am an independent contractor. To me it just sounded like a bunch of BS and not a real solution to this. You paid $600 for expert advice which told you to do nothing. You think the advice is bullshit and intend to go full steam ahead against the advice given. I'd say it is very likely that the lawyer is a better expert than you, so you should follow his advice. You are in a hole, you were told to stop digging, and you intend to continue digging. Don't. There are times where doing nothing is the best advice. In this case, you intend to accuse someone of breach of contract. That has a good chance of landing you in court. A company cannot afford to ignore such a statement. You claim the contract is void and you want to cancel it - but you can't cancel a void contract. It's void. Listen to your lawyer. | If they have not filed before the publication, there will be no ability to later file in most of the world. In the U.S. there is a sort-of one year grace period to file after publication. You will not have a way to definitively know if there is an application pending until it publishes or issues. Normally an application publishes and is open for the public to see 18 months after the first priority filing. That applies to the rest of the world, but in the U.S. it is possible to opt-out of publication. In that case no one can see he application until the day it issues as a granted patent, if ever. If you are making, selling, offering for sale, using or importing an infringing process or product when a patent issues you could be sued for patent infringement. I do not see how this can be seen a "retroactive". As a practical matter, if you fold immediately upon the patent issuing it is unlikely you will end up with any liability. You can set a search in more than one search facility to trigger if a patent is issued to one of the known inventors or use with other criteria but this is not foolproof. Edited Of course your product could infringe any number of patents unrelated and unbeknownst to the party who published the software. That party not patenting has nothing to do with what others may have filed before they published. | Does this prove that the unlicensed attorney is practicing law outside their jurisdiction and is providing legal advice by representing the "client" in legal negotiations? No. Your quote of the email does not prove that the receiver engaged in unlicensed practice of law. Nor does it prove that the receiver/non-attorney is representing, or advising, the attorney's client or the adversary. It is quite possible and valid for the unlicensed lawyer (example: paralegals) to assist an attorney who actually represents the party. | The answer will depend upon the state law that is applicable, assuming you are in the U.S. Patent law is federal law but patents and patent applications are considered personal property, like a car, and the ownership and transfer of that property is governed by state law. The terms you imagine are in your agreement are too draconian in California, for example. Please get a copy of what you signed and edit your question to include key points and indicate your state. | 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. |
Extradite or deport a criminal while there is no treaty between the two countries of Iran and Canada Thank you for considering my question. There is a criminal who has been tried in court and proven guilty and received sentences for a series of crimes including threat to kill and withdrawing money from accounts illegally. He has managed to escape from Iran to Canada legally with a work permit and also transfer the money he stole to Canada. Googling this case has no result since there is no treaty between the two countries. But I am sure there must be some way to bring the criminal back to justice. Especially because as long as he feels safe in Canada and is sure he will not be extradited, lives are in danger here (He pays people here to do the job for him). I am no lawyer, but as a citizen who has been involved in the issue for over a year, these are the only course of actions coming to my mind: Contact the immigration authorities to prevent him from obtaining citizenship of Canada and extending the visa. Try to contact the Canadian prosecutor and ask them to consider this case. Even though there is no treaty between the two countries, I believe it does not mean Canada wants to host dangerous Criminals and help them escape justice and the prosecutor might be willing to investigate at least. Am I thinking correctly? Any other suggestions? Please consider that hiring a lawyer who is willing to charge me BEFORE I get my money back from this criminal (which is quite a considerable amount of money, well, basically, my whole 20 years of work savings!!), cannot be an option for me. Of course after I have my hand on my money, I am willing to pay all the expenses. Thanks every one in advance. | Promoting the comment to an answer based on the feedback. Canada is not going to extradite him but they may deport him if he committed any immigration fraud. Typically applications for Visa or Work Permit include many question on your history including "have you ever been convicted for a crime". So either he lied on the application or the Canada didn't care about his criminal record. If he lied, you may have a lever: contact the immigration fraud department https://www.canada.ca/en/immigration-refugees-citizenship/services/protect-fraud/report-fraud.html | While I haven't read the full agreement (trade deals aren't exactly riveting), there seems to be a few gaps in the arguments given. Here's Article 24.18(3) (PDF link): Each Party shall base its fisheries management system on the best scientific evidence available and on internationally recognized best practices for fisheries management and conservation as reflected in the relevant provisions of international instruments aimed at ensuring the sustainable use and conservation of marine species. In my opinion (since I can't find too much independent commentary on this point), the US would only be required to abide by UNCLOS insofar as it relates to fisheries management. UNCLOS covers a much wider range of topics than just fisheries. There appears to be no commitment beyond that. On the other hand, there's no dispute that UNCLOS is one of those "international instruments," as it's referenced in the footnotes to this section. Also, since the US is not party to UNCLOS, dispute resolution would be through the panels established by Article 31 (PDF link), not through UNCLOS tribunals which might otherwise be possible between Canada and Mexico, as per 31.3, for example. | Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country. | It is probably illegal in all of the jurisdictions in the US where a fetus is legally declared to be a person and where the murder statutes are written to not explicitly exclude abortion: that is, in no jurisdictions. No law existing or proposed for Georgia specifically addresses "travel for the purpose of getting an abortion". The underlying theory behind the claim (advocated by some Georgia attorneys) is that a person may be open to a conspiracy charge for taking a woman to another state to get an abortion, which would be a crime if committed in Georgia. If a conspiracy exists in Georgia to do something illegal (in Georgia), that is a violation of OCGA 16-4-8 ("when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy"). The substantially same law exists in Washington, and most if not all other states. The theory is apparently that "conspire to commit a crime" means something like "conspire to perform an act which would be a crime if performed in in this jurisdiction", e.g. "purchase marijuana, or take a job at certain payday loan companies". No state has successfully claimed extraterritorial jurisdiction, where a Georgia resident can be prosecuted in Georgia for a legal act carried out in another state, so this theory is a bit of a stretch. | canada Or would I still be charged with his murder since it’s a different criminal instance? Yes, this is the correct intuition. Different instance/wrong; different basis for the charge; not precluded by double-jeopardy. In Canada, the term of art is autrefois convict. Section 609 of the Criminal Code lays out the standard for what it means for the count to be the same: the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge The later charge for murdering Bob would be a wholly different circumstance or "wrong" or "delict" than the first conviction was based on. The later charge would not be precluded. | No, it does not follow. Mostly, because that's not what is actually happening with sanctuary cities. First, there is no actual definition of a sanctuary city, neither in the law or, more specifically, in immigration policy. Here's what happens in sanctuary cities. Section 1373(a) of Title 8 of US Code states that local and state governments are prohibited from enacting laws or policies limiting the exchange of info re: citizenship w/Department of Homeland Security. So if you work for the local Department of Human Services, and someone shows up to sign up for public benefits and you find out they are undocumented immigrants, if you wanted to report that person to ICE, no government could forbid you from doing so. Conversely, the federal government can't force you to report that undocumented immigrant. Likewise, the detainers that ICE issues, which are requests to the local government to inform them when a given undocumented immigrant is to be released, are not mandatory. If that action is taken, the jail can hold the undocumented immigrant up to 48 hours for ICE to act. If ICE doesn't act, the person must be let go. A report by the DOJ's inspector general looked at a random sampling of cities that receive federal funding and found that each of them had certain policies in place that limited cooperation with ICE and ICE's detainers. However, the same inspector general found that Section 1373 is not applicable to detainers. In sum, the IG determined that, although there were no explicit policies forbidding state or local employees from cooperating with ICE, non-compliance with detainers in some jurisdictions at the very least were "inconsistent with ... the intent of Section 1373." Legal arguments abound. One argument is that the administration is interpreting Section 1373 too broadly in order to include both types of sanctuary cities. Another is that Section 1373 violates the anti-comandeering doctrine of the 10th Amendment. I guess the real answer is, "stay tuned," but for now, no it does not follow that it is a violation of federal law for a government official to declare a state/city to be a "sanctuary city." | The problem with Solution 2 is that government officials in the United States enjoy qualified immunity with respect to actions that they did while acting under color of law. It's not total immunity, but if they do things by the book, they cannot be prosecuted even if something goes wrong (even when doing things by the book, Police deal in very volatile situations and things can still go wrong because of an X factor to specific for the training manual to cover.). In other cases, it may be because multiple officers are working the scene and Office A lied to Officer B about the situation. Consider Officer A pulls over a suspect and realizes it was someone who was suspected of a crime, but couldn't prove it. He calls for back up and Officer B arrives. Upon arriving on scene, Officer A tells B to search the trunk of the car despite the fact that A had not received consent from the suspect nor has a warrant, nor cause to make a search of a trunk of a vehicle. B makes the search and finds [the bloody knife/the stash of drugs/the smoking gun/the match to a child's shoe that was missing from the kidnapping scene/ insert other incriminating evidence]. Under system (2), since it was Officer B who made the illegal search, B would be liable for it, even though Officer A lied about having legal reason for a search of the trunk space. But what's more... if the evidence is gonna be used anyway, what's to stop the cops doing it again? After all, there is very little recourse for those who are illegally searched to contest this in court (If I'm illegally searched and don't have anything on me, I have to take this to civil court, which is a different animal than Criminal Court and exposes me to broader Discovery... aka gives the cops free reign to search my property for a hell of a lot more illegal things.) or just sit back and count my 4th amendment rights (the section of the constitution protecting against unwarranted search and seizures) as worth less than the paper they're printed on. Oh, and by the way... that second word seizure... that means that they will be taking my property (or myself if they arrest me) and will not be giving it back for some time while they process it... if it's a legal to hold item (like my laptop that I do work on) that's going to make it harder for me to do my job which injures me further in lost business and income. In other cases, it could be they have a warrant for a large item (a stolen big screen tv) and while searching for it, open my sugar bowel and find evidence of a crime unrelated to theft of the television (i.e. opening a baggie of weed). This is actually an illegal search because, unless I am a wizard, a Time Lord, or Mary Poppins, there is no reason why a container smaller than a big screen TV should ever be searched when looking for a Big Screen TV and the cops should logically see this as out of bounds of the search warrant. The nature of this is damaging before the legality of the search can be determined, and because the search may have been out of scope of the warrant that was otherwise justified, the rule of making the evidence of a crime inadmissible was held in order to prevent LEOs from doing this because they could. This rule also started to take formation prior to the Revolutionary War. British Law had ruled against compelled confessions being inadmissible as evidence in 1769, a full six years before the Revolutionary war started (1775) and seven years before the publication of the Declaration of Independence (1776). Now there are some exceptions that can get the evidence brought back in, such as plain view ("The suspect's vehicle is a pick up truck with an open bed, the murder weapon was lying in the bed covered in blood"), inevitable discovery ("We have developed evidence by other means that would have lead us to this evidence legally") and Exigent Circumstances ("We believed someone inside the property was in grave danger if we did not enter the property immediately and that's when we found a cache of stolen Big Screen TVs!) and Good Faith (the Warrant was authorized for the wrong street address of the target but we found the evidence of an unrelated crime in a place the warrant authorized us to search. Everything but the goofed up address was done by the book.). | Under US regulations pertaining to Iran sanctions, §560.201, Except as otherwise authorized pursuant to this part, and notwithstanding any contract entered into or any license or permit granted prior to May 7, 1995, the importation into the United States of any goods or services of Iranian origin or owned or controlled by the Government of Iran, other than information and informational materials within the meaning of section 203(b)(3) of the International Emergency Economic Powers Act (50 U.S.C. 1702(b)(3)), is prohibited. where that acts grants the President the authority to regulate various things but The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly... the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds. The exports exempted from regulation or prohibition by this paragraph do not include those which are otherwise controlled for export under section 4604 3 of this title, or under section 4605 3 of this title to the extent that such controls promote the nonproliferation or antiterrorism policies of the United States, or with respect to which acts are prohibited by chapter 37 of title 18 So information isn't generally regulated, except potentially under section 50 USC 4604 – which was repealed. For the moment, here is what that law said (huge, not gonna copy). But that doesn't matter too much because the exception to the exception is for exports, not imports: it is legal to import technology into the US. (OTOH, how is it possible to import programs without exporting at least shred of programming technology?) Also under §560.419 The prohibitions in §560.201 make it unlawful to hire an Iranian national ordinarily resident in Iran to come to the United States solely or for the principal purpose of engaging in employment on behalf of an entity in Iran or as the employee of a U.S. person, unless authorized pursuant to §560.505. See also §560.418 with respect to the release of technology and software. You cannot bring an Iranian resident to the US for this purpose, unless you get authorization. It does not say you can't pay a guy in Iran to work remotely. And finally, §560.505 which is about the "authorized pursuant to" clause: The release of technology or software in the United States, or by a United States person wherever located, to any person violates the prohibitions of this part if made with knowledge or reason to know the technology is intended for Iran or the Government of Iran, unless that technology or software meets the definition of information and informational materials in §560.315. There are other clarificatory notes attached to this section. Finally, §560.505 explicitly allows importation of certain non-immigrant services, but what you intend doesn't seem to be covered. So it is not crystal clear, especially since your plan might involve "exporting technology". It's not safe to interpret these regulations on your own, and you need to hire an attorney who specializes in this area, where you would discuss in detail what you will be "exporting" (even if you don't think it is exporting, it could be legally deemed to be exporting). That, I think, is the main legal issue. |
What is the meaning of the "disposed" legal staus in the US? I am looking at the criminal record of a person and I see there: Defendant: Disposed Disposition: Disposed I've googled it but still didn't get it. Does it mean that the accused person was freed of all the charges or has been convicted by the court? In other word the case was closed. | Saying a case is "disposed" means that the case has been closed. From The Law Dictionary: What Does Disposed Mean In A Court Case? When a case has been disposed, this means it has been closed. Specific reasons for a case being closed can include dismissal, conviction, admission of guilt, among other reasons. Once a case is officially over, it is removed from the court’s docket. Which simply means there are no further dates for that matter scheduled on the court’s calendar. As a legal term, disposed cases can include any type of case ranging from small claim to more felony charges. | 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. | Depends where you are At common law, theft (or more generally, larceny) requires an intent to permanently deprive the owner of possession. However, many jurisdictions have removed this element from the crime. For example, s118 of the new-south-wales Crimes Act 1900 says: 118 Intent to return property no defence Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused's own use, or for the accused's own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal. | That sounds a lot like the German Antragsdelikt (literally "crime by request"). That is a crime (defined in the criminal code), that can only be prosecuted if the victim requests it. Antragsdelikt mostly applies to less serious crimes, such as slander or petty theft, while "serious" crimes, such as robbery or assault must always be prosecuted (Offizialdelikt). Also, there are many minor crimes (relatives Antragsdelikt) which are usually only prosecuted by request, but where the prosecution can also decide to press charges if it is in the "public interest" (usually because the act is deemed a serious infraction). Similar concepts exist in Austria and Switzerland. | In the United States, a crime is not prosecuted on behalf of the victim. Crimes are offenses against a sovereign, and are prosecuted on behalf of that sovereign. Prosecutions in California are brought on behalf of "the People of the State of California:" you have violated their laws, and you are being punished for that. The state constitution gives crime victims the right "[t]o reasonable notice of and to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant if known by the prosecutor, the charges filed, the determination whether to extradite the defendant, and, upon request, to be notified of and informed before any pretrial disposition of the case." What it does not give is the right to decide on any of those issues. That decision is made by public prosecutors on behalf of the state and the public writ large. | Black's Law Dictionary (5th edition 1979) states that "Liquidated" means Ascertained; determined; fixed; settled; made clear or manifest. This is the sense of the term in which damages are "liquidated" by a liquidated damages term in a contract or statute. The damages are settled by a contractual determine rather than being "unliquidated" (i.e. uncertain or unresolved or undetermined.) The sense of the word meaning sold or reduced to money, is derivative of this prior and more fundamental sense of the word. When assets or an estate are reduced to money their fair market value is fixed or settled. How a word meaning "liquid" came to mean "make clear" when modified is speculative (given what my brief research uncovered), but I think that are some very plausible paths by which that could have happened. According to Oxford Languages: liq·ui·date /ˈlikwəˌdāt/ Origin mid 16th century (in the sense ‘set out (accounts) clearly’): from medieval Latin liquidat- ‘made clear’, from the verb liquidare, from Latin liquidus (see liquid). liquidate (sense 1) was influenced by Italian liquidare and French liquider, liquidate (sense 2) by Russian likvidirovatʹ A second online dictionary source states: liquidate (v.) 1570s, of accounts, "to reduce to order, to set out clearly" (a sense now obsolete), from Late Latin or Medieval Latin liquidatus, past participle of liquidare "to melt, make liquid, make clear, clarify," from Latin liquidus "fluid, liquid, moist" (see liquid (adj.)). Sense of "clear away" (a debt) first recorded 1755. The meaning "wipe out, kill" is from 1924, possibly from Russian likvidirovat, ultimately from the Latin word. Related: Liquidated; liquidating. English.StackExchange has some answers of essentially the same question that doesn't shed much more light on the matter but one excerpt is notable: The meaning is already present in the Latin liquidus which means both "liquid" and "clear, evident". This obviously comes from liquids being limpid (transparent). Limpid by the way (another Latin cognate, originally from Oscan origin) gives Spanish limpido and limpiar. Also liquare means "to filter". So that the idea of transparency and purity is already strongly associated with liquids in Latin. | The relevant Maryland statute is MD. Criminal Law Code Ann. § 9-307 (2021), subsection (a): A person may not destroy, alter, conceal, or remove physical evidence that the person believes may be used in a pending or future official proceeding with the intent to impair the verity or availability of the physical evidence in the official proceeding. Note "that the person believes" and "with the intent to." If you have no reason to think it might be necessary in an official proceeding, you aren't violating this section. If you delete the data unintentionally or for some other reason, then you also probably are not violating the section. (I say "probably" because I'm sure there's some sort of provision for negligence or willful disregard for the evidential value of something you should know has evidential value.) As a practical matter, no copyright lawsuit or criminal trial (and criminal trials over copyright infringement are very rare) is going to depend on the browser history of the defendant's friend. What if my computer has major software issues and the only viable solution is delete everything and reinstall from scratch; am I stuck with a worthless broken computer because reinstalling things from scratch would delete evidence of a crime? If you know of evidence on the hard drive that would be destroyed, you can copy it somewhere else before deleting and reinstalling. Federal law is similar: it requires knowledge and intent. 18 USC 1519: Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. | An indictment is issued by a grand jury when they are convinced, on the basis of evidence presented to them by the government, that there is probable cause to believe that the person committed a crime. However, the indictment only has to state the charges, i.e. the grand jury's conclusion; it doesn't have to describe the evidence that led them to this conclusion. In particular, the grand jury can hear the testimony of witnesses under oath, and has subpoena powers to compel testimony. But testimony before a grand jury is sealed and must not be revealed by anyone except the witness themself. A good source for learning more about the grand jury process is the Handbook for Federal Grand Jurors. The authoritative source is the Federal Rules of Criminal Procedure, Title III. So, there must have been some evidence that he committed a crime, at least in the grand jury's view. But we, the public, don't get to see it at this time. If the case goes to trial, evidence will be presented publicly at that time, though it won't necessarily be the same evidence that convinced the grand jury to indict. (Note that this answer is about the US federal criminal justice system, since that's what's involved in the Collins case. Some states may have a similar system; others may not.) |
What does it mean if your apartment is in two cities at once I discovered that the border between two cities runs through an apartment that I am renting. There are two official parcels, one in one city (City A) and one in another (City B), they are both in the same county in California. The building straddles the line between the two cities. My living room is in City A and my Bedroom is in City B My mailing address is in City B but the Entrance is in City A There are two tax assessments, same address number, different city. What does this situation mean for me in terms of Which tenant laws apply to me Where I register to vote Additionally, in this situation, which address should be listed on a lease agreement. The real property address (entrance) or the effective mailing address. | The location of your residence entrance is irrelevant for the law, what matters most is your "street address", i.e. mailing address. That is the address (therefore city) that you use for voter registration, and basically how you identify "where I live". If you lives 5 miles out in the country in an unincorporated area, you'd still use Needles (e.g.) as you mailing address: but you would not be able to vote for a mayor of Needles, just based on your mailing address. Both municipalities might claim jurisdiction based on the physical location of the property, especially for matters of building code. It should not be possible for both municipalities to tax the full value of your property, but they could split the assessment proportionally. The cities themselves are not collecting the tax, the county is (though property straddling a county line raises an interesting question). | The relevant law in California is here. In your situation, it is presumed (as you both agree) that you have a month to month agreement. §1946 states that A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of that party’s intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days; In other words, the landlord has to give you 30 days advance notice to terminate the lease, and you have to give 30 days advance notice to terminate the lease (and it must be written notice). The section continues: provided, however, that as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days’ written notice thereof at any time and the rent shall be due and payable to and including the date of termination. which effectively says the same thing, specifically appliedd to month to month leases. There is some leeway on terminating a lease: It shall be competent for the parties to provide by an agreement at the time the tenancy is created that a notice of the intention to terminate the same may be given at any time not less than seven days before the expiration of the term thereof. The notice herein required shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail addressed to the other party. But you would have to establish that there was such an agreement (I assume there was not). §1946.1 asserts that a hiring of residential real property for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of his or her intention to terminate the tenancy, as provided in this section. That is, a lease is automatically renewed in your situation unless notice has been given. Moreover, A tenant giving notice pursuant to this section shall give notice for a period at least as long as the term of the periodic tenancy prior to the proposed date of termination. What you are proposing contravenes this provision of the law – from your description of the facts, you did not give notice 30 days before now. So your obligation to the landlord exists to the end of May. Bear in mind that the law imposes obligations on both landlord and tenant: just as the landlord cannot throw you out without proper notification, you cannot walk away from your obligation without proper notification. §1951.2 addresses breach of lease and abandonment by lessee (you) if a lessee of real property breaches the lease and abandons the property before the end of the term or if his right to possession is terminated by the lessor because of a breach of the lease, the lease terminates. Upon such termination, the lessor may recover from the lessee: (1) The worth at the time of award of the unpaid rent which had been earned at the time of termination; (2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided; (3) Subject to subdivision (c), the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided; and (4) Any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessee’s failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom. There are, also, no special exceptions about landlords selling their property that allow instant termination. That is, you still owe the month's rent, even though the lease is ending at the end of the month. You could of course ask the landlord to forgive you that last month's obligation. I am assuming that the lease was terminated properly by the landlord. If it was not, the landlord has not legally terminated the lease and it will continue until someone does properly terminate the lease. That might provide incentive for the other party to just forget the last month's rent, but it also might not. | The answer is, "No, it will not default to the state where the recording device is located." Whether your recording is legal or not may depend on where the device is located, but it may depend on other things as well. For example, to sue under Florida law, "the persons bringing suit must be Florida residents or the improper "interception" must have occurred in Florida." Thus, if the someone from NY is recorded while in Florida by someone in NJ, Florida law does not apply. The rules used to determine which state's laws apply under which circumstances are explained thoroughly here. The issue of which state's laws apply is what is known as "conflict of laws." The basic idea is simple: Because you and the insurance company are citizens of different states, you have "diversity of citizenship." If the laws in your states differ, the court must decide whose law applies -- is it the state you called from, the state you called to, or federal law? Unfortunately for you, choice of law is hard even for lawyers to get a handle on. There are several different approaches states use to answer questions about conflict of law. Which approach a state uses to settle conflicts of law will determine whose law that state's courts will apply. To get a correct answer, you need to talk to an attorney who understands conflict of law and the admissibility of wiretaps. | If it says "no pets" in the leasehold, then yes, that is enforceable. It doesn't have to be reasonable (in your opinion, or objectively) to be enforceable. Your choices are to either negotiate different leasehold terms, or to find a different leasehold. | No landlord-tenant laws that I have ever seen impose an obligation on a landlord to give a point by point response to everything in an email from a tenant. However, a tenant probably has the right or obligation to provide a landlord with written notification of a problem requiring remedy. You might then be required by law to provide a specific reply within some time frame, for example "We will fix that tomorrow afternoon", or "We are not required to fix that": it would depend on the jurisdiction and the accusation. Some caution in how you respond is warranted, because your answers can be used against you in a court of law, thus you want to be sure that your response is not misleading, and that you don't accidentally promise to do something that you won't actually do. There is a concept of "adoptive admission", where silence can be used against you. A typical case is if Smith says to Jones "That was really cold-blooded, the way you murdered Thompson", and Jones does not respond to the accusation – that fact can be introduced as evidence, because there is an assumption that if Jones were really innocent, they would protest the accusation. I don't see any way for "failure to respond to everything" in this manner could constitute an adoptive admission – an "admission" means that you directly or indirectly indicate that you did a thing, which is not the same as ipso facto agreeing to something (for example, not replying to a statement "I'd like my rent reduced by $100 per month" is not an "adoptive agreement"). | The right to adequate housing is a political question, the content of which is unclear in the UN's fact sheet. What they say is: All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, clean drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, food storage facilities, refuse disposal, site drainage and emergency services. Sanitation facilities are not completely ignored, so there is a theoretical basis to start from. However, that list of desiderata is not legally enforceable, so it would depends on the laws of the particular jurisdiction. In the state of Washington (US), a rental that lacked any sanitary facility (toilet) would be a violation of the health code: even hot water is required by law. In other countries, esp. where running water is not ubiquitous, there may be no legal obligation for a landlord to provide a toilet with running water. Whether legal action could be taken against the landlord depends on local law. A property owner can evict a tenant, subject again to local law. Usually, it requires a legal process where the owner petitions the court to evict the tenant, and in case the tenant has a contractual right to be there, the owner has to show cause (tenant breached the terms of the lease). A landlord does not generally have an obligation to find alternative housing for a tenant, but perhaps there is such a law somewhere, related to tenant tenure. The mention of a co-owner is a bit confusing. If A is the sole owner of a property, A can exercise landlord rights. If A and B both own the property, either of them can exercise landlord rights. However, if they disagree, i.e. A wants to evict tenant C and B wants to let C stay, the dispute between A and B must be resolved, and if they cannot come to an agreement then B can cause a delay of the eviction until the dispute is resolved in court. Again, the details on this would depend on the jurisdiction, and in part whatever landlord-tenant laws there are. | Is there a way for us to prevent the sale of the house until they have moved the fence? For example, it seems that filing suit against the current owners doesn't necessarily prevent the sale, and that the suit would be pointless after the sale is complete. You can't prevent the sale, but if you file suit to adjudicate the boundary dispute and file what is called a "lis pendens" giving notice that the suit is filed in the real estate records, the buyer will taken subject to the lawsuit and realistically, won't close in the first place. The prospect of an impending sale is unlikely to be something that would cause the court to take expedited action or issue a temporary restraining order, because you can preserve your rights with a "lis pendens" which doesn't take a court order. The absolute minimum amount of time in which you could get a court order on the merits without a temporary restraining order is perhaps three to four months, which is almost surely too long to prevent a sale of a house. The suit isn't pointless after the sale is complete. You can still enforce the boundary against the new owner. And, often, a new owner, having no ego in the placement of the fence, might settle the case sooner than the old owner would have. But, better practice in terms of neighbor relations would be to file suit first, so that the new buyer, if the buyer goes forwards with the sale, is aware of the defect. The old owner is also more likely to have evidence useful in the lawsuit you bring. Short of filing suit, send a letter to the realtor and the neighboring property owner with a copy of the survey advising them of the problem. If you could somehow figure out who was handling the closing, you could tell them too. This will impose upon them a legal duty to advise the new buyer before closing, and if they fail to do so, they expose themselves to the risk of a fraud lawsuit from the new owner. But, while this is cheaper, it also presents a risk that they won't warn the buyer who will then not have notice and the risk of being sued for fraud may cause the seller and the seller's realtor to resist your suit more aggressively and to be less prone to settle it. If you wanted to be really aggressive, you could give the neighbor notice that the fence is over the line and that you will destroy it if the neighbor doesn't act, and then tear down the fence, which is strictly speaking within your rights if you can do so without a breach of the peace, because it is on your property. I wouldn't recommend this approach, however, as it could lead to violence or police involvement that depending on the policeman who isn't trained in real estate law, might get you arrested which is not good even if the charges are later dismissed. | A tenant has a right to "live in a property that’s safe and in a good state of repair". There are additional regulations possibly applicable in your situation if this is a "house in multiple occupation", summarized here. "Hazards" are explained here. However, these rules pertain to the condition of the building, not other tenants (except that "overcrowding" is also a hazard). They also say you should "report anti-social behaviour to your local council". It is legal to rent a room in the UK to a person convicted of a violent crime, so it would also be legal to rent a room to a person who hasn't committed a crime (assuming he is legally in the UK). If the person did not engage in actual anti-social behavior towards you, there is nothing to report to the local council. The landlord has no affirmative duty to disclose such a fact, and it might be illegal to do so under the Data Protection Act, since this is "sensitive personal data". |
Is Google obliged to obtain consent for the processing of searches for anonymous searches under the GDPR? If you do not register a personal account for Google, thereby not giving specific and informed consent for the processing of your personal data, are Google still obliged to obtain consent for the processing of your searches for uses outside the scope of performing the search itself for searches under the scope of the GDPR? For example, the search and subsequent search results clicked could be used by Google to improve future search results, or improve ads personalization. | Whether consent is necessary depends on the specific processing purposes. For example, general usage statistics about search terms or about the usage of the site likely fall under a legitimate interest. Outside of the GDPR, there can be consent requirements for the use of specific technologies. Per the ePrivacy directive, consent is required for accessing or setting cookies on a user device, unless the cookie is strictly necessary for the service requested by the user (“functional cookie”). This consent requirement also extends to other storage and fingerprinting technologies. A functional cookie could e.g. be used to store a history of search terms on the user device itself. However, ad personalization is not strictly necessary for the search functionality, so setting cookies (or using similar technologies) for ad personalization requires consent, regardless of whether ad personalization itself would require consent. To determine whether a processing purpose falls under a legitimate interest, the data controller must weight the interest against the data subject's rights and freedoms. There are no objective guidelines on this, and ultimately a court would have to decide. However, I would assume that the tracking necessary for ad personalization is an inappropriate infringement on the data subject's rights and freedoms, so that ad personalization cannot fall under a legitimate interest. The data controller would have to choose a different legal basis, which effectively only leaves consent. | Don't collect or process personal data Many (though of course not all) websites can easily be run without collecting or otherwise processing any personal data. The position of GDPR is that if you are not able to fulfil the basic, simplest core conditions for processing personal data (understanding what you're processing and why and why it's allowed, describing it in a privacy policy, having a non-underage person who's responsible for that) then you are not allowed to process personal data of other people. So don't. Build your website so that any personal data are not collected. | Under GDPR article 6 paragraph 1 item (c) one lawful basis for processing personal information (PI) is: processing is necessary for compliance with a legal obligation to which the controller is subject; The obligation to attribute a reused work under a CC license is such an obligation. Moreover, the licensor has the option under any CC license to specify a pseudonym for attribution of that work, or to waive attribution totally. Not doing that while releasing content under a CC license that requires attribution could reasonably be considered consent to publish that name along with each re-released copy of the work, so there are at least two lawful bases for processing that name and making it public. In some jurisdictions the license has the status of a contract, which imposes an obligation to attribute the author properly under GDPR Article 6 paragraph 3, as described in more detail in the answer by amon. Also, usernames are PI if and only if it is reasonably possible to associate them with a specific natural person. If a person chose a user name for a single site, not used for any other, and did not post any info that allows the person's identity to be determined, it is not PI. Often, of course, the person can be determined. | 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. | GDPR is not a blanket ban on the handling of personal data. It is a set of guidelines when and how data may be processed and stored. Documenting the compliance with a deletion request is one of many purposes for which some data may be retained after a deletion request. Others would be past contractual obligations, legal documentation requirements, and even a balance of 'legitimate interests' of the processors and the data subjects. The processor might be able to argue that fraud/abuse prevention is such a legitimate interest. What if I want to create a service that does let users enter their friends' email addresses, and send those friends an email invitation to the service? Get a specialist lawyer on staff who can check your exact business processes. A web site like this cannot possibly give you a full explanation of the pitfalls. | Your analysis so far seems correct. You must comply with all applicable laws. The GDPR's Art 6(1)(c) legal basis clarifies that having to provide personal data is no excuse: that legal obligation is all the legal basis you need for sharing the personal data in accordance with your obligations. However, that legal basis doesn't generally excuse you from your other data controller obligations. For example, you should still inform the data subjects about the processing as per Art 13(3). | IANAL. (1) GDPR is certainly relevant. (2) This is certainly "personal data" under the definition in GDPR article 4. (3) Maintaining this data is probably lawful under article 6 sections 1(a) (consent) - provided that the Terms and Conditions of the site make clear that the user by signing up is consenting to this information being held (3) There is certainly an obligation under article 14 to disclose that the information exists, and to say how it used. (4) Article 15 says that data subjects are entitled to see the information and know what recipients or categories of recipient have access to the information (I don't know whether it's enough to just say "moderators", or whether the moderators need to be identified). (5) I can't see any reasons why the obligations under articles 16, 17, and 18 regarding rectification, erasure, and restriction of processing aren't relevant. This is exactly the kind of situation that GDPR is designed to address. If you're restricting the service available to particular users based on a record of their behaviour or on judgements made by moderators, then they absolutely have a right to know, and a right of redress. | From the GDPR's definitions: ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; This blurred image would be "information relating to an identified ... natural person (‘data subject’)." It does not matter whether the person can be identified using the information in question. Therefore, the answer to your question Under GDPR, does blurhash of a profile picture count as personal data is yes. |
Can HTML formatting be copyrighted? A private website that publishes the Constitution of Pakistan carries the following copyright disclaimer: We reserve all rights to the HTML formatting and presentation of the entire Constitution and all accompanying documents as presented here. No reproduction of the HTML formatting is permitted without our express written permission. Source My question is, does HTML formatting meet the the threshold of originality? Or is this text likely just a deterrent? | Unless there is something special in Pakistani case law on this topic, it would pass the originality requirement. In my opinion, it is actually very well laid out, and it is clearly not just slapping a few tags on plain text. This article does not indicate any particularly high standards for originality in Pakistan. | In the US, at least, facts - like the speed of light, the name of a dinosaur or the moons of Jupiter - are not copyrightable. But the words or pictures, designs and original work used to express and present those facts in books, websites and other publications by individuals and publishers are copyrightable. (Original work doesn't need to be published to be copyrighted; it is copyrighted at the moment of creation.) See How can "factual" intellectual property be protected? Plagiarism can be copyright infringement; it's copying and presenting work of someone else's as your own. But not all copyright infringement is plagiarism in the sense that someone is claiming others' work as their own: if you're selling a T-shirt with an unlicensed design, you're not really claiming the design is yours; you're just trying to make money. If you use all or part of an image or a quote or a song from a copyrighted source in your own work, you need permission and attribute the source. Or, you have to decide if the amount of the copyrighted material you are using might be Fair Use and you don't need permission. But decisions on what might constitute Fair Use are ultimately decided in court, because that's where can you end up when a person or a publisher sues you for alleged copyright infringement. | What you are missing is that the original copyright holder can give permission to make derivative works with strings attached. There is no automatic right to derive something from a copyrighted work. Those strings could include constraints on what you create in the process of making the derivative work. Yes it is a string limiting what you can do with something you own, but you would have been warned in the license and had the choice to start from scratch. People do create work-alike software with no copyright strings using two teams and a "clean room" design process. It is a lot harder than modifying something another person has developed. Also, law and someone's understanding of morals need not be aligned at all. And, in patent law, just creating something all by yourself from scratch does not give you ownership. If someone else did it first and got a patent you can't make the item you might think you own. IP law is complex and looking for "fundamentals" may not get you anywhere. | The notification that you saw is not useful legal information for you: stuff always belongs to whoever owns the stuff. It might be interpreted as saying "it doesn't belong to us", but you can't count on that (it's virtually guaranteed that at least some of the content there is owned by the website owner). A more informative statement would be "You will have to get permission from the content owner to copy their stuff", and "We're not going to spend time figuring out who owns what". You could read the terms of service (try this with Stack Exchange) to see what the site tells people. The TOS here says that if you contribute anything, it "is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license". You can then look up what that license says and learn what that allows. Websites are kind of tricky, though, because it's not hard to change the wording of a TOS, and you need to know what specific TOS was promulgated at the time a particular contribution was unleashed. Usual practice is to think it through carefully and not frequently tweak the TOS, but it's not illegal to change the TOS. Note that copyright law does not prohibit you from using other people's stuff, it prohibits you from copying. The distinction is clearer when you see a post that explains an algorithm with actual code, you read and learn and make use of that, but write your own code. As a user out there, if there isn't a clear indication that stuff posted is there for the taking, under some public license (as is the case with SE), then getting specific permission to copy, from the owner of the content (possibly untraceable), would be necessary. Now assume that you're a moderator or site-owner of some forum: presumably (hopefully) you have a TOS that addresses that situation, which says that moderators have the right to edit or delete content at their sole discretion, and also you say what kinds of posts are prohibited. Such an statement is not absolutely mandatory for all things, but it may be necessary to avoid litigation over some acts. One one end of the spectrum, it would be illegal for a forum to host child porn, stolen credit card numbers, or protected digital content. If a user were to post such stuff, the site would need to eliminate that stuff, and the poster could not legally rely on an argument of the type "That's my stuff, you have no right to mess with it". On the other hand, if a forum actually requires paid membership, then there may be a strong contractual expectation that the user is getting something of value, so you would have to watch for statements that could be interpreted as broad permission to put stuff out there without any interference. (For instance, a file-hosting service would have only minimal restrictions on content, aimed at protecting their own legal interests; whereas a political-advocacy site would have maximal interest in prohibiting the expression of views counter to the cause). Thus the SE TOS has you "grant Stack Exchange the perpetual and irrevocable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works", which allows moderators to correct typos, delete offensive wording, and obliterate entire posts. If a site fails to have any such clauses in their TOS, then it might be a matter that has to be settled in court, whether they have the right to eliminate "spam" (i.e. advertising for a service, especially if the reason for getting an account was to provide an advertising platform). In light of the limited use sanctioned by the TOS, per the below comment, legal copying will be quite limited. However, "fair use" a situation where copying is allowed, regardless of what the TOS may say. (You could be banned from the site, but you could not be sued for infringement). Fair use was invented precisely so that people could make comments like "Jones advocates an absurd law, saying '...[quote from Jones]...'". Thus you can comment on a post and quote the relevant part ("The lines '[... quoting the code ...]' results in an infinite loop"). See the Fair Use FAQ for more details. | How do you know if the copyright claimant or owner of them material you are using is allowing their content on Youtube? You don't. ... does fair use automatically cover you for anything related to this? No Is it illegal to share the music experience of a legally purchased MP3 ... or to provide services that play songs ... but are not hosted by your website (in which case you just act as a pointer to other sites which are participating in illegal activities)? Yes What rights/privileges can cover you if you wish to participate in this? None I've heard (rumours probably with no legal standing), that as long as you are not monetizing their material, you will not have any legal action taken against you. You probably won't have action taken against you. That said, you probably won't get busted for smoking weed in your basement. Lack of enforcement makes it no less illegal. What copyright means Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights to its use and distribution, usually for a limited time. The exclusive rights are not absolute; they are limited by limitations and exceptions to copyright law, including fair use. The copyright holder decides how, when and by whom their work can be used and copied. At some point this right expires and the work passes into the public domain. It is not trivial to determine what works are public domain and what are not as it depends on the copyright law in the country they were created in at the time of creation and how that law has changed subsequently. In most of the world, the default length of copyright is currently the life of the author plus either 50 or 70 years. Many jurisdictions also grant workers for hire moral copyright in their creative work even when the proprietorial copyright vests with their employer. Copyright comes into existence automatically; it doesn't need to be registered or denoted in any way. For example, I have copyright in this answer and you have copyright in your question. A few countries (the USA among them) have a copyright register but that only limits the remedies an unregistered copyright holder has; failing to register does not negate copyright. Further, a single work can have multiple copyright holders: a music video for example has (barring contractual arrangements): the composer(s) holds copyright in the music the lyricist(s) holds copyright in the lyrics the performer(s) hold copyright in the music performance the actor(s) (if any) holds copyright in the acting the producer(s)/director(s) holds copyright in the finished product. In practice, most of these people have contracts which give their copyright to someone else. Almost certainly, every MP3 of every song is covered by copyright; that is, someone, somewhere owns the copyright; that is at least one someone. How can you tell who that is? Often, in the absence of a claim of copyright, you can't. Obviously, if it is a song published by a record label than its pretty obvious that they hold copyright on it and you don't need to worry about the deals they have with the artist/composer etc. Remember, copyright violations are a civil matter; the state does not get involved. It is up to each individual copyright holder to take whatever action they wish under the law to protect their rights. | Is it ok to copy the game concept and even with mostly similar content like "fighting", "building houses" etc ? Yes, but ... I should also mention that pretty much my whole User Interface is based on the User Interface from "Parallel Kingdoms" Is copyright violation. Ideas are not protected by IP law. The tangible representation of those ideas (art, words, layout, format etc.) is protected. | Probably Not The creator or owner of a piece of software does not in general have any copyright over the output when others run the software, unless that output is itself a derivative work of input supplied by the copyright owner, or forming part of the software. In this case the translation is a derivative work of the 19th century original, but that is assumed to be in the public domain. SAo google has no copyright on the resulting translation. But copyright protection is only available for "original works of authorship". (See 17 USC 102 in the US, and similar laws elsewhere.) A machine-produced translation is not an original work, and it is surely not then work of the author of the overall book. However, the author would still have a copyright on the book as a whole. The legal situation is no different than if the author had simply quoted a 19th century work. One may incorporate public domain works into a later work, and that later work is still protected by copyright, provided that there is enough original contentr to make the work as a whole "an original work of authorship". Others may use the PD [arts, or the original from which they are taken, but not the rest of the work (beyond what fair use would allow in any case). For example, I have made a number of posts here on LAW.SE. In several,of those I quoted sections from one of the numbers of The Federalist. That 19th century work is in the public domain. Anyone else may re-quote the passages I quoted from it. But that gives them no rights to use the rest of my work, except as the CC-BY-SA license or fair use permits. So the author would retain copyright on the book as a whole. But soemoen who merely quotes or uses the translated 19th century article but none of the original parts of the book would not be infringing that copyright. I say probably in the header, because I do not have any actual case-law to cite here. It is possible that some court has rules otherwise on the subject of the copyright on the output of a software tool, but I strongly doubt it. | Ideas are not Subject to Copyright Copyright does not protect ideas. This is true in the US, in the UK, and under the copyright laws of every country that I know of. Article 2 paragraph 8 of the Berne Copyright Convention reads: The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. If the ideas of a work have been so re-written or recast as not to constitute a derivative work, the original author has no rights over the new work, which becomes a separate work with its own copyright. In such case there is no legal requirement for any credit or acknowledgement, at least not under copyright law. Also the use of a work whose copyright has expired, or is for some other reason in the public domain and not protected by copyright, may be legally made without acknowledgement of the author, or even under a false designation of authorship. Plagiarism Passing someone else's work off as one's own is generally considered to be plagiarism. Some people consider that using significant parts of another's work without proper credit is also plagiarism. Plagiarism is not a legal matter. It is considered highly improper in the academic and journalistic worlds, and may carry serious consequences there. It is considered unethical by many in other situations as well. However, it does not constitute copyright infringement, and copyright law cannot be used to prevent or punish plagiarism that is not also infringement. Works Created by an Automated Process or Script Whether an automated process can (at the current state of the art) truly extract facts and re-express them to a degree that would constitute a new, non-infringing work, I tend to doubt. Whether even sufficient alteration could be made by an automated process to reliably constitute fair use, fair dealing, or have any similar exception apply I also doubt. The US Copyright Office Compendium of Copyright practice (an official publication of the US Copyright Office) states in item 307: The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) Similar legal limits on AI authorship apply in many other countries. Fair Use Fair use is a specifically US legal concept, and generally does not apply in any other country, although I understand that Israel has closely followed US law in this matter. Fair use is defined by 17 USC 107. That law specifies four factors which a court must consider in making a decision on whether a use is a fair use. particularly important is whether the new work will harm actual or potential markets for the original, and whether it will serve as a replacement for the original. US Courts also often consider whether a new work is "transformative", that is whether it serves a significantly different purpose than the original does. For example, in a popular song, lyrics are often intended to have an emotional effect. In a textbook on verse, the same lyrics may be used to demonstrate poetic technique, rhyme, meter, etc. That would be a transformative use. The presence of proper attribution or credit is often a significant factor in the decision by a court as to whether a use is fair. Using another's work without proper credit is significantly less likely to be found to be a fair use, although credit is not an absolute requirement of fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and the various questions on this site tagged fair-use for many more details on fair use. Fair dealing and Other Exceptions to Copyright In the UK and some commonwealth countries, there is a doctrine known as "fair dealing" It is somewhat similar to fair use, but is generally more limited. In other countries there are various "exceptions to copyright". Some countries have a few broad exception, some have many narrower exceptions. India, for example, has more than 28 separate exceptions. What is covered varies from country to county. Exceptions for teaching, comment and analysis, and news reporting are common. Article 9, paragraph 2 of the Berne Copyright Convention (linked above) recognizes such exceptions, stating: It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. The convention goes on to state, in article 10, that: (1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. (2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice. (3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon. Thus article 10 paragraph 3 of the Berne Copyright Convention establishes an international norm that works used under an exception to copyright, such as fair use or fair dealing, shall be properly credited. Web-Scraping The law on computer scraping is still under development, and varies from country to country. If a site operator makes it clear to users that scraping is unwelcome, it may be unlawful, depending on the rules of the country or countries involved. When a Terms of Service (TOS) document constitutes a binding contract or agreement that users must accept, and when such an agreement prohibits scraping or other automated access, that prohibition may be enforceable. in Craigslist Inc. v. 3Taps Inc., 942 F.Supp.2d 962 (N.D. Cal. 2013) a US Federal district court held that sending a cease-and-desist letter and enacting an IP address block is sufficient notice of online trespassing, which a plaintiff can use to claim a violation of the Computer Fraud and Abuse Act (CFAA). However, that decision has been criticized by many, and was not a Circuit court or Supreme Court case. In the recent case of Van Buren v. United States, 593 U.S. ___ (2021) the US Supreme Court narrowed the application of the language in the CFAA making access that "exceeds authorization" criminal. In the case of HiQ Labs, Inc. v. LinkedIn Corp. The Supreme Court addressed the question of whether scraping a public website after a cease-and-desist letter has been sent constitutes a violation of the CFAA (this was the fact pattern in Craigslist v. 3Taps). The Court sent the case back to the Ninth Circuit for reconsideration. The Ninth Circuit Court reaffiremd its prior decision that when the website had been made publicly accessible, the CFAA did not apply, even in the face of a C&D letter. This seems to overrule 3taps. Note that other means of prohibiting scraping may still be legally sound and enforceable. See "hiQ Labs v. LinkedIn" from the National Law Review. (This article and the decision it reports was brought to my attention via a comment by user Michael Seifert.) The article "Web Scraping Watch: Cases Set to Clarify Application of the Computer Fraud and Abuse Act" discusses these cases in more detail, but does not incloude the latest ruling in the HiQ Labs case. Conclusion Unless the results of the "rewrite" done by the "program" are sufficiently original to be neither a quotation, a fair use, nor a derivative work, but a new work using the same ideas, they will need to qualify under fair use or some other exception to copyright (unless permission has been obtained). This may well require a proper attribution of the original article. In any case, such credit is considered to be ethically mandatory by many. The web-scraping done to obtain the initial data may or may not be lawful, depending on the contents of any TOS document, and whether the relevant laws make such a document enforceable, which is still not a fully settled point under the law, and which varies by country. Personally, I would think giving proepr credit much easier and safer than trying to justify not doing so, but that is not law, just my opnion. |
Copyright law. Can I make youtube videos solving past exam questions? Can those videos be monetized? There are past exam questions often freely available on exam sites, like SAT sites, BMAT sample papers, AP exam papers. Can I use these questions for YouTube videos to show how one would solve them? | 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 introduction to the license says "You may adapt — ... build upon the material for any purpose, even commercially". (My emphasis). Note that there is an attribution requirement so you need to find a way to attribute each image to its individual author. For the fine details, you certainly need to read the actual license (rather than the introduction) and you probably need to consult your own, paid-for, IP lawyer - but if you are just scoping the project out at the moment, you should be fine. For contrast, here is a Creative Commons licence that does prohibit commercial use. | Facts cannot be copyrighted. Such a project does not violate copyright law, and if you're in the United States, it is protected by the First Amendment. | It seems that you don’t understand what parody is. If you do understand, please explain how it’s even possible to parody computer code. What you can do with “open source” code depends on the licence the copyright holder(s) release it under. For some very permissive licences you can do what you suggest, for most, you can’t. | First, there's a step missing: parody does not "therefore" allow you to copy protected works. You have to determine whether this is "fair use", where you get in the neighborhood of parody in identifying "purposes such as criticism, comment, news reporting, teaching ..., scholarship, or research". Therefore you have to go through the balancing act that is fair use analysis. In Campbell v. Acuff-Rose Music, Inc., SCOTUS considered parody as a form of criticism or comment, noting that "This Court has only once before even considered whether parody may be fair use, and that time issued no opinion because of the Court's equal division". For that case, the court continues Suffice it to say now that parody has an obvious claim to transformative value, as Acuff Rose itself does not deny. Like less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one. We thus line up with the courts that have held that parody, like other comment or criticism, may claim fair use under § 107. The important step in this ruling is tha For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. In other words, you can't catch a free ride on "parody" to reach a fair use judgment. Even if it were parody, "parody may or may not be fair use", as the court said. That does not preclude establishing that the work in some other way comments or criticizes. Get a lawyer before you go doing this, in case you end up involuntarily making new law. | It is not possible to say that this is generally fair use, although sometimes it would be. A copy for personal use is still a copyright right violation on its face, and fair use does not categorically exclude non-commercial or personal use of copyrighted works. It is a highly fact specific inquiry. The likelihood of anyone discovering that you have done so and deciding to sue over it is slight, but that doesn't mean that there isn't potential copyright infringement liability. Compare this to speeding. People do it all the time, and even driving one mile per hour above the speed limit is still a traffic violation. But it is rare for less serious violations to be ticketed. | There aren't bright line rules in the area of fair use (which is the core issue - you are clearly copying a work that has copyright protected portions, at least - the question is whether fair use provides a defense and whether some portions are not copyright protected). This inquiry is fact specific and driven by general standards. Context such as whether the use would be free or commercial matter as well. For your own notes, anything goes pretty much. This generally wouldn't constitute "publication" of the work and would be for personal educational used by someone who paid for the book anyway. For shared notes - it depends. Also not all kinds of copying is created equal. Some parts of textbooks are themselves in the public domain or not protectable by copyright. For example, even a lengthy quote from a scientific journal article would probably be allowed with attribution. It would also be easier to evaluate based upon the type of textbook. A history textbook can have protection similar to trade non-fiction and can have very original exposition. An algebra textbook, less so. Your question also points to an end run. If the professor is the author of the textbook (many of mine were in something of a racket), you could get permission from the author. | Basically, you cannot do it. You are required to include the MIT license in any derivative work. However, that holds only for the parts that you import from this other project. You can identify which parts of the final product are copied from the MIT-licensed program (and indicate "these parts are subject to the following MIT license"), and then you can do whatever you want with the remainder that you wrote. The downside of not licensing your material is that nobody can use it. To use it, people would need permission, which is what a license is. If you don't license it, you don't give permission, so people can't use it. You presumably want to subject your own contribution to different licensing conditions, so then you would state those conditions and clearly indicate what parts of the code you wrote. |
Why does Google require consent from users in order to process ads personalization data? Recently, Google was fined under the GDPR by France's CNIL data protection authority. The authority found Google's processing of personal data for ads personalization lacked transparency, was inadequately informed to users and did not obtain valid consent. Specifically, CNIL said Users are not able to fully understand the extent of the processing operations carried out by GOOGLE. But the processing operations are particularly massive and intrusive because of the number of services offered (about twenty), the amount and the nature of the data processed and combined. The restricted committee observes in particular that the purposes of processing are described in a too generic and vague manner, and so are the categories of data processed for these various purposes. Similarly, the information communicated is not clear enough so that the user can understand that the legal basis of processing operations for the ads personalization is the consent, and not the legitimate interest of the company. Article 6.1 of the GDPR lays out the conditions under which the processing of personal data is lawful. It seems the subparagraphs most relevant to Google's processing of personal data for the purposes of ads personalization are: 6.1.(a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; 6.1.(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; 6.1.(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. It seems that the satisfaction of 6.1.(b) or 6.1.(f) would preclude the need for Google to obtain consent to process personal data. The terms under which Google processes personal data for the use of ads is stated in their Ads Data Processing Terms, with the types of personal data in scope for those terms listed here. If a user registers to Google, personally identifying their searches, are they not also agreeing to these terms, thereby satisfying 6.1.(b)? Additionally, I don't fully understand why it is not a legitimate interest for Google, an ads-serving company, to process personal data for the purpose of ads personalization? | This is a large question, so I'll only put a spotlight on some misconceptions. Why can't Google use legitimate interest instead of consent to serve ads? A data controller such as Google must choose an appropriate legal basis per Art 6(1). But if the legal basis is consent, and the data subject declines or retracts consent, you can't do the processing anyway under legitimate interest instead. It seems that the issue is not that consent was an inappropriate legal basis, but that they decided to use consent and did not collect it properly (see below). However, Google's analysis that they need consent is likely correct. There is an good argument that a website can show first-party ads under a legitimate interest. Google does so as well. But the consent in question is for ad personalization, i.e. on creating detailed profiles on users in order to show more “relevant” ads. For that purpose, Google's legitimate interest would likely not outweigh the data subject's rights and freedoms (compare Art 6(1)(f)). Why might consent be invalid? The GDPR defines consent in Art 4(11) and specifies further requirements in Art 7. The EDPB has issued guidelines 05/2020 and previously WP259 on consent. A core requirement, in addition to the general Art 5(1)(a) transparency principle, is that consent is specific and informed. The user must be informed about the specific purpose for which consent is being asked, and must be able to control consent individually for each purpose. Additionally, consent requires an affirmative action, consent is never the default. The EDPB recommends a layered information approach: in the first information layer, at the point where consent is being asked, the proposed processing activities are summarized. Full details (including all information per Art 13) are provided in a second layer that can be reached via a link. Consent will not be informed if the data subject is required to read the entire privacy policy first. How does the CNIL see Google's approach to consent and transparency? The CNIL asserts that Google failed at every step of a layered information design and failed to obtain valid consent: consent controls were hidden by default, i.e. there was no first information layer consent controls were pre-checked, thus requiring opt-out. That's not how you ask for consent (but might have been alright if Google had used legitimate interest instead). consent is all-or-nothing and not sufficiently granular Google's main information layer is its privacy policy, but it is very general and does not provide sufficiently specific information Google only provides specific information spread across further documents, often 5 or 6 levels deep Could Google rely on Art 6(1)(b) necessity for performance of a contract? If a data subject enters a contract about Google using their data for ads, yes. Otherwise, no. But in practice, necessity for a contract is very similar to consent because the data subject can freely decide whether or not to enter a contract. Even when the legal basis is a contract, the data controller still has an obligation to provide transparent information. Depending on the structure of the contract, a layered approach could be used as well. However, the purposes of processing are ultimately given by the contents of the contract. What about the Ads Data Processing Terms? These terms are not part of the terms of service or the privacy policy that end users agree to. The ads terms are instead part of their B2B offerings. | I'd say it's definitely illegal. Here's what the cookie notice says on Facebook at the time of writing this answer: By clicking on or navigating the site, you agree to allow us to collect information on and off Facebook through cookies. And here's what the GDPR define consent: ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her; Also consider this, by the way: 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. Facebook's notice is a small blue bar at the top of its blue header, and you might not even notice it (at least on a desktop computer where I'm seeing it). I see no way to easily deny consent, for example there is no button saying "I don't accept". All you can do is click on the link to their cookie policy, and still that policy does not present a clear and easy way to deny consent in all different cases, it looks pretty complicated (among other things, it depends on whether you have a Facebook account or not). So denying consent looks pretty difficult, if at all possible. On the other hand, to give consent, you'd only have to click on any link. I tried this. I opened my browser in private/incognito mode, so it should not use any previous cookies. On Google, I searched for "facebook John Doe". Clicked on a result bringing me to a Facebook page with a list of profiles of people named John Doe. The cookie bar appears at the top, but let's pretend I did not notice it. Then I click on a profile, supposing I'm interested in a certain John Doe, and... I land on John Doe's profile on Facebook, now without the cookie notice! What happened is I gave consent by clicking on any link, that is, clicking on John Doe. I can't see any way this "consent" could ever be considered "freely given, specific, informed and unambiguous indication of the data subject's wishes". Why is Facebook not compliant? Well, they probably couldn't be compliant even if they wanted to, unless they wanted to go out of business. Lately I've been wondering what the purpose of Google Analytics would be if users were always given the option to freely refuse consent. Virtually every user would always be clicking on "I don't accept", every time everywhere, so lots of business models would be totally disrupted. By the way, as of now, the cookie bar of this community (stackexchange) does not comply with GDPR either. To tell you the truth, I'm afraid very few websites have a GDPR compliant cookie notice. | european-union (germany, spain, uk) The cookie consent law is the ePrivacy directive, which was implemented as national laws by all EU member states (including, at the time, the UK). Later, GDPR changed the applicable definition of consent so that implicit consent is no longer allowed. A notice in fine print as in the given example is not sufficient to meet this definition of consent, so any non-necessary cookies set in that context would be a violation. But it would be the national ePrivacy implementation that would be violated, not the GDPR. Thus, the GDPR's famous 4%/EUR 20M fines are not relevant here. Instead, each country can set its own fines. In Germany, this would probably be up to EUR 50k (§16 TMG) though German law doesn't implement this aspect of ePrivacy correctly. In the UK, PECR penalties are determined by more general data protection penalty legislation. Notable instances of cookie consent enforcement include the Planet 49 (ECJ judgement, German BGH verdict) case which basically affirmed that yes, the GDPR's definition of consent applies. Thus, any case law regarding GDPR consent is also applicable to the issue of cookies. Furthermore, the Spanish AEPD has issued an interesting fine due to insufficient cookie consent, but due to much more subtle violations than the outright disregard in the given example. E.g. in the Vueling action (decision (Spanish, PDF), summary, listing on enforcementtracker), the Vueling airline's website had a consent banner but ultimately told the user to reject cookies via their browser settings. This violates the requirement that consent must be specific/granular, since the browser settings are all-or-nothing if they're available at all. The airline was fined EUR 30k, the maximum possible under applicable Spanish data protection law. But what kind of risks would some blog run into that just sets cookies without appropriate consent? If the service is outside of the EU, enforcement is difficult. I am not aware of cookie consent enforcement against non-EU services. National data protection authorities can investigate the violation and issue fines, subject to their respective national data protection laws. They generally only do this when there are lots of complaints. Some authorities like the UK ICO have indicated that cookie consent enforcement isn't a priority for them. Independently, individuals can generally sue the service for damages. Some lawyers might send out cease and desist letters to non-compliant websites in the hopes of collecting fees. So aside from the last point, the risk is likely somewhat low, especially for a smaller site. At this point, it is worth reminding that ePrivacy/GDPR doesn't require consent for all cookies, and is not just limited to cookies. It is more generally about access to and storage of information on a user's device, unless that access is strictly necessary to provide the service explicitly requested by the user. Thus, functional cookies can be set without consent. However, consent does become necessary when cookies or similar mechanisms are used for analytics, tracking, or ads. Even though GDPR is involved, the cookie consent requirements apply regardless of whether the cookies involve any personal data. | Data can only be processed if there is at least one lawful basis to do so. The lawful bases for processing data are: the data subject has given consent to the processing of his or her personal data for one or more specific purposes. processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract. processing is necessary for compliance with a legal obligation to which the controller is subject. processing is necessary in order to protect the vital interests of the data subject or of another natural person. processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. So unless you have some very compelling reason to need to process that person's data without their consent, you can't legally do it. Therefore it is hard to see how you could produce this "template", and even if you somehow did the person receiving it might not have a lawful basis for fetching (processing) that data anyway. | "1) Can I use an pre checked tick box under GDPR?" Nope. "Silence, pre-ticked boxes or inactivity should not therefore constitute consent." (Recital 32) "2) Since GDPR also requires the data collector to ensure that the user is not under the age of 13 so I am planning to ask the users age only for that region i.e. EU Region. Now will simply mentioning that "By continuing you acknowledge that you are above 13 years" will work or will I have to ask the users age?" You have to require some affirmative action. Implicit consent (just continuing) is not acceptable (ibid.) "3) The GDPR requires the data collector to have a proof of the users consent. Now what kind of proof will be required for my App? I am ensuring that the user cannot move forward without providing the consent (only once) is that sufficient as a proof or is any other proof required?" If you are collecting data about the user, you should record the time and date consent was given as part of the user profile. If you are not collecting data about the user (this is only done by third party services such as Google analytics etc.) and there are no user profile, then preventing the user from using the app will have to do. The GDPR also requires data-minimization, and creating a user profile to record consent when no user profile is otherwise required will violate data-minimization-principles. | This depends on the context – GDPR rarely restricts the use of specific kinds of data (see Art 9) but instead regulates the processing of this data, and the purposes for which it is processed. Personal data is any information relating to an identifiable person (Art 4(1)). So to show that some information is not personal data, you must show either that it doesn't relate to the identifiable person, or that it's not possible to identify the person. Whether a person is identifiable depends on the means of identification that are reasonably likely to be used, taking into account the cost and effort of these means (Recital 26). This recital also mentions that singling out a person is a kind of identification. If you have lots of birthdays so that there are no unique birthdays, or if the birthdays are stored without contextual information that would allow identification, this can indicate that it's not personal data. Some examples to illustrate my views: Scenario 1: you are collecting statistical data in a shopping mall and are collecting birthdays from passer-bys, without any additional information. This information is anonymous and not personal data, since you have no reasonable means to identify the persons. Scenario 2: in an office, there's a publicly visible calendar on the wall with the birthdays of all staff members. However, the calendar doesn't say whose birthday it is. This information is likely personal data, since it's reasonably possible to infer the correct person based on contextual information. At least HR would also have the birthday for all staff members on file, so that the company clearly has the means to identify anyone. (This doesn't mean such a public calendar is illegal, just that there must be a legal basis.) It is more difficult to determine whether information also relates to an identifiable person, i.e. whether this information is about that person. This depends not just on what the information is, but how the information is used. AFAIK there has yet to be EU-wide guidance by the EDBP, but the ICO has listed some hints. I think that a birthday of an identifiable person will almost always relate to that person. | Simply use a cookie to store consent. First consider the opposite. If a user does not agree to store cookies, a cookie is the only way to remember this, as you want to avoid a new pop-up on every page-load. Because this use of a cookie is functional, you don't need permission to store that cookie. You seem have the impression that you have to prove towards the ICO if someone has provided consent. However I think it would be sufficient if you can demonstrate how your website works technically. In particular whether consent is handled properly. You might need to create screenshots or a screencast to do so. Add new proof after each major update of your website. Storing consent server-side would violate the data minimization principle of the GDPR I think. In particular because you would need to do something to be able to identify users. That would violate Art. 11(1) GDPR: If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation. Notice it is possible to configure google analytics in a way so you don't need any consent. See my answer to this question. Just IP anonymization is not sufficient. | are there any GDPR considerations that must be in place when an EU company stores personal information from citizens outside of the EU? Absolutely. The territorial scope of the GDPR is specified at Article 3: Article 3 Territorial scope This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not. 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. This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law. As specified in point 1, the regulation applies to controllers and processors located in the EU. There is no exemption of personal data based on the data subject's nationality or location. In fact, GDPR Recitals 2 and 14 explicitly mention that nationality or residence shall not be a factor: The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. […] |
Is it legal to take "bait bricks"? Bait bricks are pallets of bricks (allegedly) left near protest areas in an effort to encourage violence. I've seen people joke about just taking the bricks. If somebody saw a pallet of what they genuinely believed to be bait bricks and took one (with no intention of throwing it of course), would this be considered theft, or are the bricks considered to be abandoned and therefore free to take? | Check your local law. In Washington, the chapter RCW 63.21 says what you are supposed to do. The first part of the law has apparently been satisfieds: Any person who finds property that is not unlawful to possess, the owner of which is unknown, and who wishes to claim the found property Then you need to get a signed appraisal stating current market value from a qualified person engaged in buying or selling the items, or by a district court judge (I have no idea where district court judges get their qualifications to appraise bricks), then within 7 days, report this to the cief LEO where the stuff was found (and surrender it, if requested). You also have to serve written notice upon that officer stating your to claim the property. The burden now shifts to the government, which must publish notices in a local newspaper at least weakly, for 2 weeks. The notice might be publishable in a no-cost venue, in case the publication cost is greater than the value of the stuff. If the owner appears and establishes ownership, that's the end of the finder's potential interest. If the owner does not show up, the property will be released to the finder once he has paid the government's publishing expenses plus $10, but if the goods are appraised at less than publishing cost, there is no fee. As a finder, you have 30 days after that 60 days to pay required costs, otherwise it goes to the government. There are some exceptions, things not subject to finders-keepers (crab pots, secured vessels, motor vehicles, unclaimed property in the hands of a bailee). If you do not comply with these requirements, you forfeit any right to the property and you are liable to the property owner for the value of the bricks. Under the definition of theft, you have a defense that The property or service was appropriated openly and avowedly under a claim of title made in good faith, even though the claim be untenable since you presumably intend to claim ownership of the bricks under the lost property statute. | Yes, maybe australia In Australia, child abuse material is classified as the sexualised depiction of persons under 16 (or in some cases 18). This applies under both State and Commonwealth laws. Common charges in NSW will be possessing, disseminating or producing child abuse material under s 91(H) of the Crimes Act 1900 (NSW). Further Commonwealth offences can be found in circumstances where a communications carrier has been used for the purposes of delivering child abuse material. Within this field, there are subtle variations in circumstances. The court would need to decide if the pictures were a “sexualised depiction”. Context matters. I don’t know of any cases on point but convictions have been secured for sexualised cartoons of children and pictures of fully-clothed children in sexual poses. | You have raised two broad questions. The question about reasonable suspicion asks: when is evidence illegally obtained? That's difficult to answer, because it depends on the nature of the evidence and any statute which controlled the way in which it should have been collected. However, the focus of your question seems to be the second issue: what use can the government make of illegally obtained evidence? This is the subject of the exclusionary rule. The short answer is this: The exclusionary rule is a judicial remedy created for the purpose of deterring future unlawful conduct. The rule prohibits both direct and indirect use of illegally obtained evidence ("fruit of the poisonous tree") in a criminal prosecution, but will only be applied where its deterrence benefits outweigh its substantial social costs. To give more insight into how the courts have applied this balancing test, I will summarise its history and rationale. I will then set out the modern formulation of the rule, and try to answer some of your specific hypothetical questions. History and rationale of the exclusionary rule The exclusionary rule originated in Weeks v. United States, 232 U.S. 383 (1914). The government searched Weeks' house without a warrant, seized letters and other property, and charged him with operating an illegal lottery. Weeks applied for the return of the property, but the district court held that "the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but if competent would keep them and permit their use in evidence." Weeks was convicted. The Supreme Court reversed, holding that: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution ... The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. In Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), the doctrine was extended to prevent indirect use of information derived from illegally obtained evidence, unless the information comes from an independent source. The government illegally searched Silverthorne's offices, and copied the records seized before the district court ordered their return. The district court also impounded the copies, so the government issued a regular subpoena to produce the original documents. The district court held Silverthorne in contempt for failure to comply with the subpoena. The Supreme Court reversed, holding that: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. The Court acknowledged the 'complexities' of this distinction in Nardone v. United States, 308 U.S. 338 (1939). This case introduced the term 'fruit of the poisonous tree,' and an exception to the doctrine where the connection between the illegality and the evidence presented is 'so attenuated as to dissipate the taint.' Nardone had been convicted of defrauding the revenue twice. The first conviction was based on evidence obtained from an illegal wiretap, and was reversed by the Supreme Court. Nardone was convicted again after a retrial, and argued that the conviction should be set aside because he was not permitted to "examine the prosecution as to the uses to which it had put the [illegally obtained] information." Frankfurter J, delivering the opinion of the Court, quoted the above passage from Silverthorne and said: In practice this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint ... The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed. Once that is established—as was plainly done here—the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin. Development of modern limits to the exclusionary rule The Court clarified the purpose of the doctrine in United States v. Calandra, 414 U. S. 338 (1974), declining to extend it to grand jury proceedings. The Court held that Calandra was required to answer questions put to him by a grand jury, even though the questions had been informed by the fruits of an illegal search. The Court said: The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim ... Instead, the rule's prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures ... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons ... the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. The Supreme Court endorsed a good faith exception to the exclusionary rule in United States v. Leon, 468 U.S. 897 (1984). Drugs were found in a search of Leon's house and car pursuant to a facially valid search warrant, but on review the district court found that there was no probable cause to issue the warrant. Therefore, the search was illegal although the officers executing it had acted in good faith. After reviewing the cases in which the Court had declined to apply the rule, the Court held that the evidence against Leon should not have been excluded: The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern ... We have now reexamined the purposes of the exclusionary rule and the propriety of its application in cases where officers have relied on a subsequently invalidated search warrant. Our conclusion is that the rule's purposes will only rarely be served by applying it in such circumstances. In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. In Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998), the Court cited Leon and explicitly endorsed the use of a balancing test in declining to extend the rule to State parole proceedings: [B]ecause the rule is prudential rather than constitutionally mandated, we have held it to be applicable only where its deterrence benefits outweigh its "substantial social costs" ... A federal requirement that parole boards apply the exclusionary rule ... would severely disrupt the traditionally informal, administrative process of parole revocation. The marginal deterrence of unreasonable searches and seizures is insufficient to justify such an intrusion. We therefore hold that parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment. The Court endorsed an even more circumspect approach to the rule in Hudson v. Michigan, 547 U.S. 586 (2006). The police executed a valid search warrant and found guns and drugs in Hudson's house, but the search was unlawful because the police did not knock and announce before entering. The Court declined to exclude the evidence obtained in the search, holding that: Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates "substantial social costs", which sometimes include setting the guilty free and the dangerous at large. We have therefore been "cautio[us] against expanding" it, and "have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application." We have rejected "[i]ndiscriminate application" of the rule, and have held it to be applicable only "where its remedial objectives are thought most efficaciously served,"—that is, "where its deterrence benefits outweigh its 'substantial social costs.'" (citations omitted) Current state of the law As of June 2017, the last word on the rule is the Supreme Court's decision in Utah v. Strieff, 579 U.S. 232 (2016). Again, the Court reversed a State court's decision to suppress unlawfully obtained evidence in a criminal trial. The Court identified three exceptions to the exclusionary rule: First, the independent source doctrine allows trial courts to admit evidence obtained in an unlawful search if officers independently acquired it from a separate, independent source. Second, the inevitable discovery doctrine allows for the admission of evidence that would have been discovered even without the unconstitutional source. Third, and at issue here, is the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that "the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained." (citations omitted) Strieff was illegally stopped and asked for ID after leaving a house under surveillance by narcotics police. After discovering an outstanding arrest warrant for a traffic violation, the police lawfully arrested and searched Strieff and found him in possession of methamphetamine. The Court found that the exclusionary rule did not apply because of the attenuation doctrine: The three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975), guide our analysis. First, we look to the "temporal proximity" between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Second, we consider "the presence of intervening circumstances." Third, and "particularly" significant, we examine "the purpose and flagrancy of the official misconduct." (citations omitted) [W]e hold that the evidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct. Specific scenarios Can the past arrests serve as a basis for reasonable suspicion to stop a person? As a basis for inclusion of the person on an informal watch list? As mentioned in the introduction, this question is not really about "fruit of the poisonous tree." It is an anterior question about whether or not a police stop was unlawful. The court asks: would the facts available to the officer at the moment of the search warrant a man of reasonable caution in the belief that the action taken was appropriate? Terry v. Ohio, 392 U.S. 1 (1968). Officers are permitted to consider criminal history, as the Fourth Circuit held in United States v. Sprinkle, 106 F.3d 613 (1997): A prior criminal record "is not, alone, sufficient to create reasonable suspicion." Nevertheless, an officer can couple knowledge of prior criminal involvement with more concrete factors in reaching a reasonable suspicion of current criminal activity. (citations omitted) As probable cause for a future search warrant or arrest warrant or wiretap? As basis for active surveillance without a stop or arrest or search warrant? What if law enforcement set up a sting operation targeted at this individual? As with reasonable suspicion, evidence of the suspect's reputation and criminal history can be taken into account in establishing probable cause for an arrest or search warrant. However, a history of past arrests would probably not suffice in itself to "warrant a man of reasonable caution in the belief that an offense has been or is being committed": Brinegar v. United States, 338 U.S. 160 (1949). Could the suppressed evidence be used to counter an entrapment defense (which requires a showing that the defendant didn't have a propensity to commit the crime)? Could the suppressed evidence be used to impeach testimony in a criminal case that the defendant had never used drugs before? If the evidence is suppressed then by definition it cannot be used adversely to the defendant. However, if the evidence is shown to have been obtained illegally, it will only be excluded where the deterrence benefits of exclusion outweigh its substantial social costs: Pennsylvania Bd. of Probation and Parole v. Scott. The evidence is more likely to be admitted if it falls into one of the three exceptions set out in Utah v. Strieff: independent source, inevitable discovery or attenuation. In considering attenuation, the court will pay particular attention to 'the purpose and flagrancy of the official misconduct.' Clearly, it is impossible to say, in general, whether unlawfully obtained evidence could be admitted to counter an entrapment defence or attack the defendant's character and credibility. Not only will the application of the exclusionary rule depend on a wide range of considerations, other rules of evidence may need to be applied (such as the rules against character evidence and extrinsic evidence on a collateral matter). Nevertheless, the cases cited above should give some insight into how the court will approach the fruit of the poisonous tree doctrine. | It may be illegal under product labelling regulations that apply to that kind of product (or under a general deceptive trade practices act), but even then, only if you are interpreting the numbers, whose meaning is not clearly spelled out, correctly. But, to be actionable as fraud it must, among other things, be a misrepresentation as to a material fact (which if the goods, such as cordless drills, are not perishable it probably isn't) and the recipient of the misrepresentation must have justifiably relied upon the misrepresentation (which is necessary not true in the case of a representation that it was made in December 2018 on a product sold no later than July of 2018). It is also not entirely clear that this is a "made on" date. It could refer, for example, to the the twelfth batch or lot or shipment of products made in 2018, and not to the month of December, or it could refer to a product made in 2018 at factory number 12. @NateEldredge in the comments also makes the plausible observation that it could be a week number which is a common system in manufacturing which would put it in a more reasonable March 2018 time frame. You probably shouldn't do anything, because you haven't been harmed by this cryptic string of numbers embossed on the product, and even if you were, your damages would not be worth the time or money involved to pursue it as anything other than part of a class action lawsuit. | If they have no legal grounds then it would be trespass to chattels However, they do have legal grounds. Following the procedure laid out in the relevant Act makes the car refuse under the Act notwithstanding your opinion. Move it or lose it. Or seek an injunction preventing the council removing the vehicle- this will likely fail. | 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. | 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. | If it’s your pizza, yes The civil equivalent of theft is the tort of conversion, “consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England & Wales, it is a tort of strict liability.” |
How dangerous is it for British lawyers to give advice on Law Stack Exchange? How risky is it for people to self-identify as legal professionals and answer questions here? In Britain, precedent such as Chaudry v Prabhakar – 1989 can make British lawyers reticent to give informal advice, even when outside of a professional or business context. I do wonder whether the site disclaimer is sufficient to protect against a claim for incorrect advice however. Law Stack Exchange is for educational purposes only and is not a substitute for individualized advice from a qualified legal practitioner. Communications on Law Stack Exchange are not privileged communications and do not create an attorney-client relationship. It is also questionable as to whether professional indemnity insurance in the U.K. would cover a British lawyer sued in this way. So, what are the risks for British lawyers, and do other countries rulings similar to Chaudry v Prabhakar – 1989? I don't believe this is a duplicate of other 'advice on stack exchange' questions, as it addresses more specific concerns. Also, I posted this on the main site rather than on Meta as it's an interesting legal question in its own right. Also I acknowledge that there may be selection bias in responses by legal professionals prepared to answer this. *8') | Chaudhry v Prabhakar is unlikely to be applicable Giving specific advice one-on-one in a field of known expertise when specifically asked creates a duty of care. Giving general advice on a mass-communication forum to general questions when all parties are aware that specific legal advice is specifically off-topic doesn’t. | The liability shield is the big one, and it can't be achieved with a contract. Just because the contract says you're not liable, that doesn't make it true. If I sign a contract with my friend that says "Nate Eldredge is hereby the King of France", that won't make me the king, nor will it force anyone except maybe my friend to acknowledge me as the king. By its nature, a contract can only bind the parties to the contract, and has no effect on the rights of anyone else. Suppose, then, that Alice and Bob agree to start a pizza delivery business, using a contract like you suggest. Their delivery car crashes, injuring Carol, a bystander, who incurs medical bills that exceed the assets of the business. Carol decides to sue Alice and Bob personally. Sure, Alice and Bob have a contract, and maybe it prevents them from suing each other, but it certainly doesn't prevent Carol from suing them; Carol never signed it. So Carol can still go after Alice and Bob's personal assets. Thus contract law cannot give them a liability shield. However, the government can, since it makes the laws about who can sue whom under what circumstances. And it has made laws saying that Alice and Bob can be protected from such suits, but only if they form a company according to the process that the law sets forth. So that's what they have to do. | The legal system advances practitioners on a number of criteria, not all of which relate to their legal education. It's essentially the same for all professions - your schooling/education may or may not determine your success in the field. Also relevant would be the social circles you navigate, your achievements post-education, and so on. | Online conversations are generally allowed evidence. However, EVERYTHING in the chat should be considered, as well as any later actions. Were there later conversations that said something different? Did the lease you signed have different terms? One line in a WhatsApp does not make your case a "slam dunk". It may only be one piece of evidence in a much larger context. | You have asked about "United Kingdom", but I can only answer about England and Wales; the law in Scotland is very different (rather more different in some respects than the difference between E&W and the State of New York). There is no time limit per se on manslaughter charges; if the police find evidence for a manslaughter charge after 80 years, there is no difficulty (in principle) in bringing a charge against the now-centenarian (provided they are competent to stand trial, and they can get a fair trial, and so on). However, in the case you mentioned I would have thought the major problem would be a defence of autrefois convict - in other words, the defendant can (usually) only be charged once with charges arising from a particular set of facts. It is just possible that the subsequent death constitutes a new fact which allows a new prosecution. On the other hand, the rule for murder used to be that if the victim survived a year and a day then it wasn't murder (even if they then died of their injuries). Finally, the case certainly would not be reopened with a charge of manslaughter. It would be "causing death by dangerous driving", which is a very different offence. Edit My thanks to ohwilleke whose comment about the "year and a day" rule prompted me to do a little research, and discover the Law Reform (Year and a Day Rule) Act 1996. Section 2(2) clearly covers the present case (in both legs), and says that the perpetrator can be re-prosecuted, but only with the permission of the Attorney General. The act is very brief, and I encourage you to read it all. (And incidentally, does not apply to Scotland.) | The answer to the question "can so-and-so sue me?" is almost always "yes", regardless of context. Such a suit might be baseless, and it might get settled in your favor, but you still have to spend the time and money to defend yourself. This can be disastrous for a start-up that's trying to get off the ground, and it's how patent trolls make their money. (I'm not accusing SnapChat of engaging in such tactics as a rule, of course; I'm just pointing out that the legal system does allow for them.) Whether or not you are likely to be sued is a separate question, and one that can really only be effectively addressed by a trademark attorney with full knowledge of the particularities of your situation. | england-and-wales Admission of the confession is at the discretion of the court PACE s78 gives the court the discretion to decide on the admissibility of confessions obtained if it appears to the court that "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." There is deliberately no case law guidance on this. Superior courts in the UK have been scrupulous in saying that each case turns on its merits. The “circumstances in which the evidence was obtained” are certainly suss and would not be permitted by a police officer who is required to warn the suspect and advise them of their right to silence. However, that is not sufficient to exclude the evidence. The court also needs to consider whether it would have “such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” If the confession is the only evidence then admitting it would clearly be unfair. However, if the Crown has mountains of other evidence, then the confession may only have a small probative value. There is no “fruit of the poisonous tree” doctrine in the UK Far more likely is that the Crown would not even seek to introduce the confession. It would just slow the trial and give the defence grounds for an appeal. Instead, they would use the confession to inform their investigation and get other evidence to convict. Legal privilege In England and Wales, legal advice privilege only applies where there is a lawyer present. If Badal is a lawyer, then the privilege attaches; if he isn’t then it doesn’t, irrespective of what he led Naina to believe. The same would be true even if Badal believed he was a lawyer but, for some reason, was not licenced in E&W. Litigation privilege is a broader concept and covers all advice, including from non-lawyers, where litigation (including criminal prosecution) has commenced or is reasonably likely. Based on the description, Naina has been committed to stand trial so everything she said is covered by privilege and is inadmissible. Why bother doing this? Most criminals are not sophisticated and will often implicate themselves if you give them enough space without the police or others violating any rules. Anecdotally, I have a relative who was a psychologist for a remand prison - prisoners charged but not yet tried. At the start of every meeting with a prisoner they would say “I work for the state, nothing you say is confidential and it can be used against you” - they still had prisoners confess to crimes they weren’t charged with, name accomplices, and tell where the loot was hidden. | Typically in defamation law, claims made persuiant to litigation are not defamatory, since they are going to be tested for validity if the case goes to trial. I'm not familiar with any differences in what is generally done in settlements between the U.K. and the U.S., but since both are Common Law countries, and Settlements are very common in civil proceedings in the U.S., it's a good start. Generally a settlemant can occur anytime before the verdict of the case is rendered, although usually it will happen after preliminary hearings during the Discovery phase. In the U.S., Discovery is very broad and one need not prove that the requested items contain evidence but might contain evidence. This means that, for example, you could request a substantial amount of e-mail records from the opposing party because somewhere on the company e-mail server, there might be something to help your case. And even if after you sift through the emails and find no smoking guns related to your case, you could find some dirty laundry that's unrelated but still damning... if not more so than the initial case. Many people, especially big compainies, would rather just give the ex-employee some what he/she wants, if it means they don't get to see the proverbial man behind the curtain. Additionally the practice might fall into a legally gray area of the law that, if it reaches trial, could hurt the company or even the industry if a judge rules against the company, effectively saying that this gray area is now definately illegal. Better to eat the loss of capital with the settling out of court than to take the much larger hit of the buisness practice being illegalized all together. Typically in settlements, both parties agree to terms and sign a contract. While the whole of the terms are never discussed, almost all include that the plaintiff will drop the case and never bring the matter to court again and that both parties will sign a non-disclosure agreement (NDA) meaning that they won't discuss the rest of the settlement terms with anyone not party to them. If the plaintiff does break the NDA, the defendant can sue for breech of contract and recover at the least the monitary compensation they awarded in the settlement. Conversely, if the respondent breaks the NDA, the plaintiff can refile their initial suit with the addition of breech of contract (and this time it will get to court... and all the dirty laundry sees the harsh light of day.). While the respondent in a settled case can possibly sue for defamation if the plaintiff said the respondent did what the initial suit claimed they did (legally, it was never proven or disproven), or they were guilty (again, since no verdict was reached at trial, no guilt was established), the breech of contract is a much more airtight case and doesn't open up discovery to the respondent's cupability in the settled case (since the breech is about discussing the settled case at all, not the validity of the accusations of the settled case). Typically they would not go this route because then it opens the can of worms the settlement was trying to keep a lid on. |
Can you seek asylum for not wanting to do your mandatory military service in your home country? Let assume you live in a country where there is mandatory conscription that you need to fulfill. However, you don't want to do that, and it is not possible for you to renounce your citizenship without fulfilling the mandatory military service. In Europe (EU + UK + Switzerland), is this a valid reason for seeking asylum? Have there been any such cases before? Edit: Further, assume that you don't live in your home country. | In Europe (as defined above) it does not appear that any country allows an asylum claim based solely on the fact of being subject to obligatory military service. However, asylum claims can be made based on obligatory military service plus something surrounding the circumstances of military service. For example, during the Vietnam war, Sweden granted asylum to a number of Americans who either deserted from the military or who wanted to avoid being drafted, and asylum claims are granted for Eritrean refugees escaping the policy of indefinite conscription. The general policy as articulated by the UNHCR is that asylum claims should be considered when there is persecution for objecting to military service for reasons of conscience, if applicable military acts violate international law, if conditions of service constitute inhumane treatment, if conscription is carried out by a non-state agency and the government provides no protection, or recruitment of children. None of these conditions exist in the Swedish or Norwegian military, so a Norwegian cannot avoid military service by applying to Sweden for asylum. In Shepherd v. Germany, plaintiff, a US soldier serving in Iraq, deserted and applied to Germany for asylum, believing the war to be illegal. This is relevant because EU law allows asylum claims in cases of prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2) The court (CJEU) ruled that the plaintiff was not subject to persecution so the case was returned to the German courts, but in that ruling the CJEU provides extensive legal guidance on the connection between the "persecution" prong of an asylum claim, and military service under EU law. | Your caveat about not being a national of either country is a bit puzzling, because your question is about acquiring the countries' nationality, which implies as a matter of course that you do not presently have either nationality. After acquiring each country's nationality, of course, you will be a national of that country, so by the time you are a dual citizen of Italy and the US, it will no longer be true that you are not a national of either country. In other words, it's analogous to asking "Will I be able to get a driver's license after I learn how to drive? The problem is that I don't have a driver's license." US law does not require you to renounce Italian citizenship if you naturalize as a US citizen. I don't know Italian law on the matter very well, but the relevant section in Wikipedia says, without citations, that naturalizing elsewhere does not cause loss of Italian citizenship. Assuming that is true, and that neither country makes any relevant changes in its nationality law, then the answer to your question is yes: you can be a dual citizen of both Italy and the United States. (In fact, you may at that point hold three or more citizenships if your current country or countries of citizenship does not or do not have laws causing you to lose citizenship when you naturalize in Italy or the US.) | Being automaticly citizens of the US and Uruguay, causes no problem with your German citizenship. For Uruguay, you are appling for recognition of your citizenship at birth as a grandchild of a Uruguayan citizen. Only when you, as an adult, apply for nationisation (i.e. that country considers you to be a foreigner at the time of the application) would you lose your German citizenship automaticly when this application has been granted, unless you apply for an exception beforhand. Such an exception would only be granted when you can prove that you still have strong ties to Germany. | You do not have to prove that you are an EU citizen, because EU citizenship is entirely irrelevant to the GDPR. Have a look at Article 3, which basically says that GDPR applies if you are in the EU or if the company is in the EU. If the company is in the EU, therefore, you do not need to send them anything or prove anything about yourself to invoke GDPR. If the company is outside the EU, you can send proof of address or other evidence that you are in the EU, which might be something that they already have, like your IP address. | What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty? In the US you are not required to seek permission to travel, or prove your past whereabouts to the government if you happen to miss some civic duty. They generally call up way more people than they need for this sort of reason. The length of time you are gone or where you choose to travel is irrelevant. In my experience you are given about a month heads up. If you didn't receive the notice until you returned from out of town, and they send a follow up, simply inform them of the fact that you were gone and didn't receive the notice until you returned. Jury duty is an obligation to some extent, but it is also a right and a privilege. It isn't a criminal offence you are liable for if you didn't get the notice. If it were that important to verify your availability ahead of time the notification would be sent registered mail with a signature required. | Assuming, for purposes of argument, that such a change could be made by executive order, or indeed by legislation, rather than by amendment, yes, the change could and would have to have an effective date, and apply only to persons born after that date. Indeed that would still be true if such a change were made by constitutional amendment. Consider, people whose parents (or one of whose parents) are US citizens, but who are born outside of the US, are or may become citizens (by statute), but only if the citizen parent complies with certain rules specifying a minimum period of residence in the US, and other conditions. Those periods and conditions have changed over the years, and each such change had an effective date. If such a change could be made but could not be made with an effective date, then it would apply retroactively, and deprive people who are already citizens of their citizenship. There is no valid equal protection claim, because the same rules apply to both individuals, they merely give different results for the different birth dates. (See my answer to this question for why I do not think such a change would be valid except by Constitutional Amendment.) EDIT: I suppose such a changed interpretation, if made at all, might take the position that such births never did validly convey citizen ship, and all people whose parents were not validly in the country had never been citizens. That strikes me as even less likely to pass judicial review, but one cannot know what the Supreme Court will do when faced with a truly novel situation. | A list of potentially expatriating acts may be found at https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality.html As the page explains, one will lose one's citizenship when performing one of these acts with the intention of losing one's US citizenship. In most cases, the presumption is that such intention does not exist. One obvious exception is an explicit renunciation of citizenship before a consular officer. The others are accepting a "policy-level position" in a foreign government, serving in a foreign military engaged in hostilities with the US, and committing treason. | Yes, but only under very limited circumstances that would not be applicable to most people. Under directive 2004/38/EC, your wife can be deported only if she is a threat to public safety, health, or policy. This is particularly a consequence of Articles 3 (section 1) and 7 (sections 1 and 2). Provisions concerning expulsion are found in Chapter VI. Another possibility that could lead to her expulsion is a finding by the French government that your marriage is not genuine, or was undertaken as a marriage of convenience (Article 35). |
What regulations specify the loan and what regulations specify the credit under US law? What is a difference between loan and credit in the law system? Let's say US law. What does it mean to grant a loan, use a loan or to have a credit? What regulations describe both credit and loan? | The terms are used in inconsistent and overlapping ways. Their meaning has to be determined from context. Words do not have universal meanings in all contexts in the law. A loan generally refers to a delivery of something (often money) with a legally binding expectation that it will be returned with some additional compensation to the lender, later on. To "use a loan" would mean actually receiving a loan from someone. A "grant of a loan" usually means agreeing to make a loan in the near future, rather than actually carrying out the loan at that time. Credit is a broader term with multiple senses. When a purchase is made "on credit", the sale is accompanied by a loan to the buyer to assist the buyer in making the purchase. But, the term a person's "credit" can also refer to an ability to borrow money, rather than to money that has already been loaned. A third sense of the word "credit" is a technical accounting sense of the word. In double entry accounting, a credit is an event that increases a person's assets or reduces their liabilities (in contrast to a "debit" which does the reverse). A transaction that is a credit to one party in double entry accounting is usually a debit with respect to the other party, or is part of an offsetting debt-credit pair of impacts on the person's books in a single event. | 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? | Congress is not questioning the validity of the debt. Congress occasionally refuses to authorize borrowing more. If the government cannot borrow more, it must run a balanced budget. The U.S. government's budget is currently so unbalanced that large spending cuts are required to balance the budget. In theory, Congress could raise taxes instead of implicitly preventing spending. However, when Congress refuses to authorize borrowing more, it rarely is in a mood to raise taxes by enough to immediately balance the budget. | The following answer is based on general common law jurisdictions; many jurisdictions have statutes that will change some of these. In particular, consumer contracts, real estate contracts and employment contracts are typically heavily regulated and may have additional requirements. What is a contract? A simple definition of a contract [Guest, AG (ed), Chitty on Contracts, Sweet and Maxwell, 27th ed, 1994, p 1] is: A contract is a promise or set of promises that the law will enforce. Such promises must be between different people; you can't contract with yourself. Note, however, that you and a company you own are different people; so you can form a contract with your company. So at least two people must be parties to a contract but there can be more, in fact, as many as you like. So long as the requirements are met by each of the parties they will be legally bound by their promises. Contracts are ubiquitous Most of us engage in contracting many, many times a day. Almost every transaction where something of value passes from one person to another in return for something of value going the other way is part of a contract. Buy a coffee. Use some electricity. Get a haircut. Sell something on Ebay. What elements are required for validity? To form a contract, all parties must have: Intention to create legal relations Agreement Consideration Legal Capacity Genuine Consent Legality of Objects Intention to create legal relations The mere fact of mutual promises does not create a contract. The law requires some evidence (express or implied) by the parties that they intend to make their promises legally binding. Two presumptions, both of which may be overcome by the evidence, have developed to help determine this: an agreement in commerce or business is presumed to be a contract, an agreement of a family, domestic, social or voluntary nature is presumed not to be contract. In addition, a transaction with a public authority carrying out a statutory function is not normally contractual, even if a fee is paid. In contrast, government commercial activities such as buying or selling goods or services (that are not statutory obligations) are contractual. Agreement The parties, having decided they wish to be legally bound, have to agree on what they will be bound to. The most common way this is determined is by the concept of offer and acceptance, however, a global approach can be taken by looking at the acts and conduct of the parties to determine if they have reached an agreement. Offer An offer is a definite undertaking with the intention that it shall become legally binding when the person to whom it is made accepts it. In working out if a communication is an offer or not, the following are considered: An invitation to treat is not an offer. An invitation to treat can include putting goods on display in a shop (but putting them on display in a vending machine is an offer), publishing a catalogue or price list, advertising an auction or putting a "For Sale" sign on your house or car. An offer can be made to a specific person or persons, a class of persons or the whole world. The offer can only be accepted by someone to whom it was made. For example, if I offer to sell my car for $5,000 to Jim then only Jim can accept it, if Tony "accepts" it there is no contract. An offer must be communicated to the person(s) for whom it is intended. Duh. An offer can be revoked before it is accepted. Acceptance Once an offer is made there are rules used to determine when (and if) it has been accepted: Acceptance must be in reliance of the offer; that is, the person "accepting" the offer must know that it exists. For example, if B find's A's lost wallet and returns it out of kindness, not knowing that A has offered a reward, B cannot claim the reward when he learns of it. Acceptance must be complete and unqualified. If there is anything further to be negotiated then a contract has not been formed. Conditional assent is not acceptance. An agreement to buy "subject to bank finance" for example is not a contract. Acceptance must be clear and certain. The exact terms of the contract must be agreed with sufficient certainty, if the terms are indefinite there can be no contract. Note, however, that common usage or past dealings can provide sufficient certainty. Acceptance may be express or implied. That is, you can accept an offer by word or action. Acceptance may be retrospective. Where parties have acted on the basis that a contract will be formed in the future then if and when that contract comes into existence, those acts form part of it. A counter-offer is a rejection of an offer. If you make a counter offer then that kills the original offer; you cannot subsequently accept that offer unless it is re-made. Acceptance must be communicated (unless it is communicated by conduct). Again, duh! The offeror may prescribe the manner of acceptance. If the offer says it can only be accepted by post for example, then an email is not an acceptance. Example 1 B walks into A's convenience store. A has on display a chocolate bar with a price tag of $1; this is an offer to treat. B can now make an offer on said chocolate bar by: Saying, "I will give you $1 for this chocolate bar", Saying, "I will give you 50 cents for this chocolate bar", Saying, "I will give you $2 for this chocolate bar; but you must accept my offer in writing", Saying, "I will massage your left foot for 1 minute for this chocolate bar", Saying, "please give me this chocolate bar for free" (Note: this is not an offer that can lead to acceptance due to absence of consideration, see below), Picking it up and putting it on the counter (this is implicitly saying what No 1. said explicitly). Needless to say this is the most common method. Now that B has made the offer (by whatever method) it is open to A to accept it. Ignoring the silly offers and focusing on 1./6., this is typically done by A saying "$1, please" (explicit) or holding out his hand (implicit and slightly rude). At that point (but not before) B is legally committed, the offer has been accepted; he can't put the chocolate bar back, however, A is unlikely to sue for breach if he does. Consideration A contract must be an exchange of promises. If A says to B "I will give you $100" and B says "Thank you" there is an agreement but no contract; quite possibly there is no intention to create legal relations but B has given no consideration to support A's promise. Consideration is the price and a price must be paid for every promise to form a contract. Some examples of consideration are: A promise for a promise: A promises to work for B in return for B's promise to pay A. C promises to fix D's leaking tap in return for D's promise to fix C's car. A promise for an Act: E promises to give F a car if F gets a certain grade at university. G promises to pay H's debts in return for I withdrawing a suit against H. J promises to shop in K's supermarket in return for K supplying a trolley. The following rules apply to consideration: Consideration is required for a contract to exist Consideration can be "executed" (a promise for an act) or "executory" (a promise for a promise) but cannot be "past". If the act or promise has already happened, it cannot be consideration for a contract. For example, if A promises to pay B for work already done, there is no contract. Consideration need not be adequate; that is, the deal does not have to be "fair". Consideration must be sufficient - this is different from adequacy. Insufficient consideration falls under: performance of a duty imposed by law, performance of a duty imposed by an existing contract, acceptance by a creditor of part payment by a third party, composition with creditors, moral obligation (i.e. you can't do it for love), illusionary or uncertain promises. Consideration must move from the promissee but need not move to the promisor. For example, if A promises to pay B if C will fix A's car, B cannot enforce A's promise because B has offered no consideration for A's promise. Alternatively, if B had promised to organise C to fix the car then that would be good consideration. Legal capacity A contract may not be valid if one or both of the parties is legally incapacitated. At least six classes of persons are (or were) subject to degrees of incapacity (I won't go into details): Minors the mentally ill the intoxicated married women (archaic) corporations capital felons. Genuine consent Consent may not have been given due to: Mistake, however, remedies are restricted, narrow and technical, Misrepresentation Undue influence Duress an Unconscionable contract Legality of Objects You can't make a contract where the law says you can't. Is there anything else? A great deal, however, these are the basics. As previously mentioned, the common law may have been changed in your jurisdiction by statute; either to contracts as a whole or to certain types of contract. In addition, statutes may require some contracts to be in writing and/or witnessed; contracts to do with real estate and employment are a favourite for this. Other than this there is no need for a contract to be in writing, be signed, be witnessed or have any other special mumbo-jumbo. Indeed the vast majority of contracts are verbal with implied terms (or terms read in by statute) and are formed and completed without the parties even realising there was a contract. | There are a number of areas in which the US states can pass laws only to the extend that they do not conflict with Federal laws passed by Congress. When a federal law clearly says that states may not pass laws on a given subject, the issue is clear. When it specifically invites state laws, the issue is also clear. But when a Federal law imposes certain regulations in a given area, it may not be clear if a state may go beyond the Federal requirements. Sometimes it can. For example, there is a Federal Minimum Wage. But states are free to impose higher minimum wage levels, and some have done so. So when a court decision or legal article says "Congress having occupied the field" it means that a set of Federal laws is intended to be a compelte regulation of a given area, and states may not add additional regulations of their own in that area. I am not sure what rules apply to disclosure of information by the Capitol police. | Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe. | A company may retain information to comply with legal obligations, exercise legal claims or rights, or defend legal claims. Maintaining the ability to charge and refund on a credit card is within the scope of their right to retain information. I would not assume that "removing payment method" deletes the data from their database, it means that you can no longer use that method of payment. See this section of Cal. Civ. and this section. A company would need to retain the information somewhere in case there was a reasonable explanation of a charge-back. | If by invalidated you mean you do not have to pay it back, no it is not invalidated. The way a loan is supposed to work is that you are given the money and then you could spend it or use the unused portion of the money to pay back the loan. The $400 that you did not use would technically be considered payment on the loan and you would owe $300. |
Do you have to answer questions in English when pulled over? When you have been pulled-over when operating a vehicle on public property (i.e. a highway), do you have to communicate with the officer in English in (Arizona) United States of America? I understand that you must give them driver's license, proof of insurance, and registration, and I vaguely remember reading in the Arizona's driver's handbook that there are a set of questions you must be prepared to answer in English. However, I am not sure if this is correct. There are generally two theories on being the best way to deal with traffic stops: 1. is to be nice and comply with the officer, nicely answering any questions; 2. is to be nice and comply only to orders they are legally obligated to follow, answering only questions they are legally obligated to answer, and speaking to the officer as minimal as possible. But I would like to test a third theory: speaking a language the officer does not understand, and making it appear that I either barely understand the officer, or barely can speak to the officer in their language (presumably English or Spanish, most likely, in the United States). I am thinking I will start speaking in German to the officer, and hope the officer doesn't speak German. This will frustrate the officer (and make them feel sorry for me), and make the officer want to ask as few questions as possible, without getting frustrated that I refuse to answer them. Thus, reducing the self-incriminating evidence, while reaping the benefits of not being the "I won't speak to you" jerk. So if I spoke and listened perfectly in English, would it be obstruction of justice (or otherwise legally a lie) to intentionally construe myself as (or pretend to be) a German speaker, and not an English speaker, to the officer? | You are not obliged to say anything to a police officer during a traffic stop, in fact you are generally better off staying silent. This is your Fifth Amendment right to silence. The only exception to this is that the officer could ask for your name and you are obliged to give it under Arizona Laws 13-2412, but the answer to that is language-independent and is usually already answered with your driver's license in a traffic stop. If you did choose to communicate only in German, this may have the effect of frustrating the officer's investigation but if you only make truthful statements in German it is unlikely to be obstruction of their investigation. Arizona Laws 13-2409 is I believe the relevant section (emphasis mine): A person who knowingly attempts by means of bribery, misrepresentation, intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor or grand jury or who knowingly injures another in his person or property on account of the giving by the latter or by any other person of any such information or testimony to a peace officer, magistrate, prosecutor or grand jury is guilty of a class 5 felony, except that it is a class 3 felony if the person commits the offense with the intent to promote, further or assist a criminal street gang. In general, a law that required you to give answers to a police officer during an investigation in English if you understand English and have waived your right to silence would violate your First Amendment right to free speech (as it is in effect "forced speech"). However, you would need to be careful not to tell the police officer that you do not understand English if that is not true, as it could be misrepresentation. Police officer training likely includes instructions for detaining someone that cannot understand them and the police can detain you and wait for an interpreter to continue their investigation if they determine that is necessary. You may actually be shooting yourself in the foot by doing this, because the time it takes for them to get an interpreter likely extends the amount of time the detainment can last while remaining "reasonable," so you may be waiting by the side of the road longer than you would have if you had simply told the officer that you were invoking your right to silence and followed the officer's instructions without speaking. As an aside, as more people are educated on their rights via the Internet and understand why they should always invoke their right to silence when detained, police officers will get more used to people they pull over immediately and politely telling them that they are going to invoke their right to silence. I doubt most police officers will hold it against you as long as you are otherwise cooperative and don't yell at them or berate them. | Bobstro gave the practical answer, that it's a stupid idea for many reason. This is for the US in general, states may have laws that say otherwise. It is not illegal to provoke someone or a government official (police), it's done all the time in protest (not riots). It is not illegal to run from a cop who has not detained you in any way, or has not issued an order to you. The U.S. Supreme Court has made clear that people not suspected of criminal activity can ignore a police officer who approaches them. Wisconsin has even said, that even after a police officer knocked on your window, you can still leave. However, it may give probable cause, especially with the statement of "Oh shit! The police!" It IS illegal to run from a cop who has detained you or issued a lawful order. The order "STOP" is a lawful order, and from that point on, you are committing a crime if you do not stop. For your case, check out the NYTimes article "Supreme Court Roundup; Flight Can Justify Search By Police, High Court Rules". | Legally, they cannot just nab you. The usual (?) option is that authorities in the US request extradition pursuant to the US-Mexico extradition treaty via the Department of Justice, and if the paperwork is in order, this can result in a Provisional Arrest Warrant (and arrest) in Mexico, which will be carried out by the Mexican federal police. This is true whether or not you go to the US consulate. After a hearing in the Mexican courts you might be extradited (or not, but DoJ presumably doesn't proceed with cases that they will lose). Extradition is not possible for every offense, so you would have to look at the offenses listed in the treaty, and whatever the Arizona warrant is about. You can't be extradited for parking tickets, you can be extradited for murder: whatever it is, it has to be a crime in both places, and has to be subject to a minimum one year imprisonment. Also, if you are a Mexican citizen as well, you cannot be extradited unless the Mexican authorities agree to (whereas there is no choice if you are only a US citizen). An alternative is deportation, which would overcome limitations related to extradition, but it's not clear what the requirements for deportation from Mexico are (typically illegal presence, unclear whether Mexican authorities can or would try an end-run around official extradition procedure). Although consulates enjoy a degree of immunity from local law, a consulate in Mexico is still Mexican territory, subject to Mexican law. If you are in the consulate, Mexican authorities cannot enter without permission to arrest you. They also cannot arrest you without a warrant (see Art. 16 of the Mexican constitution). Consular staff also cannot arrest you (if you are not caught flagrante delicto). Nor are they authorized to execute a US warrant in Mexico (thus they have to go through the process of judicial review to send you back to the US, and why a Mexican warrant is required). See this Q&A, relevant to the status of embassies: what is relevant to us is that both the US and Mexico operate under the rule of law, so the issues surrounding Syrian refugees in the Syrian embassy do not arise here. | If you were moving "with the flow of traffic" but over the limit, you were still breaking the law, and the cop can choose which car or cars to stop on any basis or none (except ones forbidden, such as racial in the US). This is almost surely not a valid defense, not in any jurisdiction that I know of at least. If you can show that to slow to the speed limit would have actually been unsafe, you might have a defense, but that is going to be hard to get a court to accept. | Try the phone or email contacts at Florida Department of Law Enforcement - Home. The state of Florida doesn't appear to maintain a statewide officer registry, but that department should be able to verify someone is or isn't a officer in conjunction with the police department closest to your location. If this neighbor is threatening or attempting to enforce the law while not showing ID that proves he/she is an officer, that's serious, and you should call the local police department. Talking about being a LEO while drinking beer at a BBQ is less serious, but still could be a third degree felony. See Statutes & Constitution - Florida State Statutes: 843.08 False personation.—A person who falsely assumes or pretends to be a firefighter, sheriff, officer of the Florida Highway Patrol, officer of the Fish and Wildlife Conservation Commission, fire or arson investigator of the Department of Financial Services, officer of the Department of Financial Services, officer of the Department of Corrections, correctional probation officer, deputy sheriff, state attorney or assistant state attorney, statewide prosecutor or assistant statewide prosecutor, state attorney investigator, coroner, police officer, lottery special agent or lottery investigator, beverage enforcement agent, or watchman, or any member of the Florida Commission on Offender Review and any administrative aide or supervisor employed by the commission, or any personnel or representative of the Department of Law Enforcement, or a federal law enforcement officer as defined in s. 901.1505, and takes upon himself or herself to act as such, or to require any other person to aid or assist him or her in a matter pertaining to the duty of any such officer, commits a felony of the third degree, | Miranda rights do not attach until the suspect is subject to custodial interrogation. "Custody" means that the suspect reasonably believes that he is not free to leave the conversation. "Interrogation" means that the officer is engaging in direct questioning or other conduct that would reasonably be expected to elicit a response. A suspect is free to waive his Miranda rights and begin speaking without a lawyer, but a waiver must be knowing, intelligent and voluntary. "Voluntary" means that the waiver is obtained without coercion (torture, threats or promises) by the government. None of the five scenarios indicate that Clyde ever believes he is in custody, so he has no Miranda rights in any of them, making his confession admissible in all of them. But to play it out further, let's assume that Officer Olivia arrives and immediately slaps handcuffs on Clyde: No interrogation, no Miranda rights. The confession is admissible. No interrogation, no Miranda rights. The confession is admissible. Miranda rights attached at the beginning of questioning. Clyde waived by confessing. Reading the Miranda rights established that the waiver was knowing. We don't have any facts suggesting the waiver was not intelligent. The waiver was not obtained by government coercion, so it was voluntary. The waiver was effective, so the confession is admissible. Same as 3. No interrogation, no Miranda rights. The confession is admissible. The key thing to keep in mind here is that the purpose of the Fifth Amendment right against self-incrimination was to avoid misconduct by the government, and it has generally been implemented only to that end. The key case here is Colorado v. Connelly, 479 U.S. 157 (1986), which involved a guy who approached a police officer and asked to talk about a murder he had committed. The officer Mirandized him, and he told them all about the murder and where he buried the body. It turned out that he was a chronic schizophrenic and was going through a psychotic break at the time of the confession, which he had only offered because "God's voice" told him to. As with your truth serum scenario, the question became whether the Miranda waiver satisfied the voluntariness requirement. The Colorado Supreme Court held that "capacity for rational judgment and free choice may be overborne as much by certain forms of severe mental illness as by external pressure." But the U.S. Supreme Court reversed, holding that neither the defendant's due-process rights nor his right against self-incrimination are offended by non-governmental influences, even when they undercut the defendant's free will. Since then, other courts have relied on Connelly to hold that voluntariness was not defeated by: a suspect's flu, hangover, hunger, or exhaustion, U.S. v. Elwood, 51 F.3d 283 (9th Cir. 1995); a suspect's heroin use, Elliott v. Williams, 248 F.3d 1205, 1213 (10th Cir. 2001); a suspect's heroin withdrawal, U.S. v. Kelley, 953 F.2d 562, 565 (9th Cir. 1992); a suspect's orders from his father, N. Mariana Islands v. Doe, 844 F.2d 791 (9th Cir. 1988); or a suspect's unusual susceptibility to suggestion or intimidation, U.S. v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993). tl;dr: Because the truth serum was not administered by the government, the confession is admissible in all five scenarios. | Taking the stated facts at face value (i.e. you can prove them in court). Md. TRANSPORTATION Code Ann. § 20-102 § 20-102. Driver to remain at scene -- Accidents resulting in bodily injury or death (a) Bodily injury. -- (1) The driver of each vehicle involved in an accident that results in bodily injury to another person immediately shall stop the vehicle as close as possible to the scene of the accident, without obstructing traffic more than necessary. (2) The driver of each vehicle involved in an accident that results in bodily injury to another person immediately shall return to and remain at the scene of the accident until the driver has complied with § 20-104 of this title. So, you must stay there until you have complied with § 20-104. Md. TRANSPORTATION Code Ann. § 20-104 § 20-104. Duty to give information and render aid (a) Rendering assistance. -- The driver of each vehicle involved in an accident that results in bodily injury to or death of any person or in damage to an attended vehicle or other attended property shall render reasonable assistance to any person injured in the accident and, if the person requests medical treatment or it is apparent that medical treatment is necessary, arrange for the transportation of the person to a physician, surgeon, or hospital for medical treatment. (b) Duty to give certain information. -- The driver of each vehicle involved in an accident that results in bodily injury to or death of any person or in damage to an attended vehicle or other attended property shall give his name, his address, and the registration number of the vehicle he is driving and, on request, exhibit his license to drive, if it is available, to: (1) Any person injured in the accident; and (2) The driver, occupant of, or person attending any vehicle or other property damaged in the accident. (c) Exhibiting license. -- The driver of each vehicle involved in an accident that results in bodily injury to or death of any person or in damage to an attended vehicle or other attended property shall give the same information described in subsection (b) of this section and, on request, exhibit his license to drive, if it is available, to any police officer who is at the scene of or otherwise is investigating the accident. (d) If no one able to receive information. -- If a police officer is not present and none of the specified persons is in condition to receive the information to which the person otherwise would be entitled under this section, the driver, after fulfilling to the extent possible every other requirement of § 20-102 of this title and subsection (a) of this section, immediately shall report the accident to the nearest office of an authorized police authority and give the information specified in subsection (b) of this section. So, not only is it legal to leave to seek aid, its required. | It is the duty of the witness to give the testimony, no matter what their nationality is. As a witness, a German citizen is not different from a French, Uruguayan, or even a stateless. The only letter the judge will usually give them in addition to a verbal thanks is a formal letter recognizing that they have, on suchandsuch day(s), been called as a witness to the court and appeared. This is usually given to any witness and pretty much a form. It does serve as evidence for example in cases of absence from work - and you are entitled to the losses you incurred for appearing in court if you formally request them. It isn't forbidden to request a different letter from a judge, but they might not give such an extraordinary letter of appreciation, because that might taint the case: it could raise the question if the testimony was bought with or made to gain such a letter. |
Can you disown a child that is not your own? I am wondering about this question - can you are disown a child if he is not your own? Imagine a situation when you signed the birth certificate of your wife's child not knowing he is not your biological child. One day, you somehow finds out and divorces her. Do you have any obligation to this child even though you (arguably were deceived to have) signed his birth certificate? I am curious how various country would treat this case. | It depends on the jurisdiction. The term you are looking for is “paternity fraud”, and depending on where you are in the world, you can challenge paternity even after accepting the child as your own. The wikipedia page lists several examples where the man has been successful. It also lists several examples where the man has been unsuccessful and has been ordered to continue paying child support. | 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). | 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. | A child is not property, therefore a (deceased) parent cannot transfer ownership. In case the sole custodial parent dies, the court will appoint a guardian for a minor child, and will take into consideration the wishes of the deceased parent, however their primary duty is to protect the interest of the child. It follows from this that objections to nomination of Smith as guardian are more easily sustained, since the requirements for being a guardian (e.g. in Washington) are stricter than the requirements for receiving $100,000. RCW 11.130.090 excludes any guardian who has been "convicted of a crime involving dishonesty, neglect, or use of physical force or other crime relevant to the functions the individual would assume as guardian", but such a person is not barred from inheriting property. There are limited formal grounds for contesting a will: testator mentally incompetence, formal failure of the document, (the laws surrounding signatures and witnesses), no clear indication that the document is intended to be a will, forgery or fraud, undue influence (such as a gun to the head), or mistake (for example, mistakenly believing that their child was dead therefore leaving it all to a neighbor). So it is possible, but not so easy, to contest a will. Organ donation takes place under separate laws: you can't wait for the probate process to get finished in three months before donating organs. | How can B, who pretends to be C, be not B? They can’t. However, that doesn’t matter. What matters is that A believes they are not B and, more importantly, B not being B is an implied (or explicit) term of the contract. | I exclude Shari`a law because I don't know, but generally there would be no legal recourse that depends on the lie. A marriage is not legally viewed as a contract with enforceable obligations, so a woman could not be forced to bear a child against her will if she had earlier promised to do so, and she could not be penalized in any way. The man still has the ability to obtain a divorce. There is a difference between a fault-based divorce and a no-fault divorce, where a fault-based divorce may be quicker (dispenses with the requirement for months of separate living). In a jurisdiction that has fault-based divorce, the traditional grounds are cruelty, adultery, desertion, imprisonment, and physical inability to engage in sexual intercourse undisclosed before marriage. The latter does not include the inability to get pregnant. Division of marital assets is governed by law, where the principles of division are not punishment, they are equity (although states split into "community property" vs. "equitable distribution" based on the distinction "what is equitable" versus "50-50" – equitable distribution states do not sanction punishing a spouse for misconduct). There are also "marital torts" for certain kinds of wrongful acts, such assault, infecting a spouse with an STD, defamation etc. But as is the case with any tort, there has to be a legal duty between the parties, and that duty has to come from operation of law and not just agreement. There is no legal duty to always tell the truth or to bear children. | OK, I talked to a lawyer (in Massachusetts) and these are the answers I got. One can draft a confidential exclusion letter to state wishes regarding excluding certain people from being guardians. In the letter you can explain in detail why you think somebody is unfit to be a guardian. Execute this document as you do for your will and tell your family that it exists so that they can access it if you die (or give them a copy). The advantage of a stand-alone document is that it is not public, differently from the will which is public. The lawyer also suggested to also have a separate stand-alone guardianship document (and so to not include the guardian section in the will). The reason is that a will can be executed only if somebody is dead. But if somebody is e.g. in a coma (or missing), he won't be able to take care of his children and yet his will would not be able to executed. A separate guardianship document would instead apply also in these situations thereby minimizing the chances that somebody, whom you do not consider fit, becomes a guardian of your children. | Can a person sign a contract committing to never taking an ex-spouse to Family Court? Basically no. There are important circumstances where waiving a right to sue is not allowed as a matter of law, which often apply. This cannot be done: (1) if the existence or validity of the marriage is disputed, (2) in cases where there are (or could be) minor children, (3) in cases where there are adult children in connection with whom there is child support owed, that is not approved by the court with the child or a guardian for a child approving it, (4) in the case of alimony provisions that are "unconscionable" as that standard is defined for family law purposes, and (5) in cases where there was a defect (such as lack of adequate financial disclosure) in connection with entering into the agreement in question. But, otherwise, it is possible to agree to property divisions in a divorce, attorney fee divisions in a completed divorce, and to alimony awards, that cannot be challenged in court except on the grounds shown above. Often a family court will retain jurisdiction to resolve disputes that arise to interpret property division and alimony awards that were properly entered into when the alimony award was not unconscionable at the time it comes into being, and to enforce breaches of the agreement. But this doesn't have to be done. When jurisdiction is not retained, questions of interpretation and enforcement can be brought in a new court. I've seen divorces where ambiguities in property division language in agreements are interpreted by courts decades later to figure out who owns what property. In one such case there were two courts that might have had jurisdiction to interpret the agreement of the parties, neither of which thought that it had jurisdiction over the case, so to parallel consolidated appeals had to be brought to decide which court had the authority to resolve an ambiguity in the original agreement before either court could get to the merits of the dispute between the parties. Of course, at some point, all the kids will be grown, there will be no outstanding child support amounts owed, all property will be divided, and in some cases, all alimony awards (if any) will be fully performed. Once that point in time is reached and the statute of limitations for defects in entering into the agreement has run, then no further family court litigation is allowed. For example, as part of a divorce agreement, my (soon to be) ex-spouse wants me to put money aside in escrow that my ex can use in the event that I open up a case in Family Court. The ex is paranoid that I will continue litigation, as is agreeing to certain concessions if I agree to this stipulation. When my youngest child turns 21, the escrowed money will go to me. But if I open a case before then, he wants to be able to use the escrowed money for his lawyers. Is this escrow arrangement legally enforceable? This is probably legally enforceable if it is mutually agreed to, although I've never seen a case in New York specifically addressing that issue. This is a very different question than the title question. |
What qualifies as a Non-Compete Clause So I'm 17 and for the past few months I've been working on a programming project. My intent is to use the code for profit in the future, and because of that I've been reluctant to recruit others to work on the project. Before vacation my Entrepreneurship teacher told me something about a Non-Compete Clause, a document that if I get someone to sign online offers me legal protection from them stealing my code. I'm not sure how to set one of these up though, and if I screw this up I could potentially lose months of hard work? Any advice for confused teenager? | A noncompete clause is a section of a contract whereby one party agrees not to compete with another party. These agreements are usually (always) limited as to time, geography, and scope. In other words, if you had a dog-walking business in your neighborhood you might like to hire someone to help walk some dogs. You'd like this person to agree not to compete with you. You charge people $10 per walk and you pay this person $5 per walk so you want to stop them from walking your customers' dogs for $7. In order to get the $5 per walk from you, your employees agree to not go into the dog walking business in your neighborhood for one year. Cat-sitting? Fine. Walking dogs in other neighborhoods? Fine. Walking dogs in your neighborhood 12 months and one day after they stop working for you? Fine. The reason for the limitations is that judges throw out agreements which are too restrictive. You could not require that a person agree to never walk a dog ever again. You could not stop a person from from walking a dog anywhere in the world. You could not stop a person from working any job for any of your customers. The laws about restrictiveness are unique to each state so that's why people recommend that you talk to a lawyer. Judges honor the work you've done to build a customer base and will allow you to protect it, but they're not going to let you keep your people from ever working in the same business again. The non compete describes the limits of the protection. You need to make sure that the code that others create for you in your employment is yours. It's always a good idea to get the specifics in writing just in case something wacky happens where it looks like someone other than you might own work created while working on one of your projects. The water gets pretty muddy when people are working on their own time with their own tools, it could be very easy for them to argue that they created a thing for their own use and provided it to you for your limited use but that they otherwise own it. This is not a noncompete. It's an ownership clause, aka an IP clause. | 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. | Impressum Requirement Wow, based on your citations, you've done a lot of research on this topic. I'm just going to add one more reference, which is from the same site as your first German citation and has incredibly detailed and judicially referenced information on almost everything related to the Impressum. All my non-GitHub links are to sections of that page. Based on your research, I'm going to take it for granted that you understand that according to the Telemediengesetz (TMG), an Impressum is required on a web page if it is "business-like" (geschäftsmäßig), or if it helps, I prefer to word it as "potentially commercial." I would have to argue that open source projects have to be seen as inherently "business-like" for the purposes of the TMG for two reasons: Some other legal person may have similar software as part of their business and might have the need to serve legal notifications to the owner of a GitHub project (TMG § 8 gives competitors the right to sue). Think potential copyright violations here. It is possible to build a more traditional commercial business around open source, for example what Canonical is doing around Ubuntu. Additionally, the common legal advice is to even include an Impressum on a personal blog, though I'm not aware of any court case having occurred at that level yet. In my opinion, a GitHub account can be seen as more "business-like" than a personal blog, and would follow that advice out of caution. I'll note that the XING situation you bring up is complicated. It centers over whether the content of XING pages is "business-like" according to the TMG. It may well turn out that some pages will need an Impressum and others won't. As for placing it in the project's readme.md, that might work but I have two concerns: The courts have essentially stated that the text of the link must imply that the required information under TMG § 5 is located there. For example, the words Impressum and Kontakt work, but the word Information does not. To me, "readme" is not sufficient, but this concern might be negated by the fact GitHub by default renders the readme.md directly on the project home page. While it has been ruled that the Impressum does not necessarily have to be directly on the home page (for GitHub, that would be the company's/users profile page), it must still be readily available in an intuitive location. I don't know if putting it in a project page satisfies the legal requirement. If it was sufficient, it's also likely that each project would have to have an Impressum so that it can't be missed. Examples The dominant pattern that I could find1 on GitHub is an off-site link to the Impressum contained in the profile page's byline right underneath the title. Examples: https://github.com/sedadigital, https://github.com/comsysto, https://github.com/znes, https://github.com/eSagu, https://github.com/TIBHannover. I'm almost certain this meets or exceeds the legal requirements. Example screenshot: Additionally, I found a few that had a repository specifically for an Impressum. Example: https://github.com/johsteffens. Since these repositories were clearly visible on the user's main page (either because there weren't enough repositories to make them span multiple pages, or because it was specifically pinned to the main page), I would argue these also meet the legal requirement for being readily available. While I didn't find any examples of it, another possibility would be to combine the above two approaches, having a link in the byline that links to an Impressum repository or some other page within GitHub. This would be useful if you didn't otherwise have an Impressum hosted elsewhere. There were also scattered examples of people placing an Impressum on a project wiki page or on an impressum.md file at the top level. However, none of the users I looked at were consistent in doing this across all their projects. Also as previously mentioned, it's questionable whether not having it on the main user profile page meets the legal requirement. The Wiki page in particular I don't think meets the requirement that it can easily be found. Found using the following Google search: site:github.com impressum -impressum.php -impressum.html -impressum.jsp -impressum-manager -github.io -issue. Exclusions meant to filter out a lot of false positives, mostly projects for websites that had their Impressum in code format meant for deploy and not for display on GitHub itself. | Contracts can say all sorts of unenforceable things, you provided an example of one of them. A person cannot be compelled to stay and work somewhere they no longer wish to work. At the risk of getting my wrist slapped for straying too far into the land of opinion, a clause like this is likely intended to take advantage of naive teenagers who will provide free employment referrals because they think they have to. | With respect to the first question, discussing an idea in a non-encrypted email is not a publication that forfeits the right to patent an idea, even though it is not 100% secure. In the same way, talking about an idea for a patent with your patent lawyer in a secluded booth of a coffee shop in person does not constitute publication of the idea for this purpose, even if someone is secretly spying on you at the time. Since I am at the moment employed by a company, even though the idea originates from myself, it seems that I should quit my job first not to have my current company have any claim over my idea. It is possible that the contract makes even ideas that you come up with yourself while employed by the company the property of the company. If so, you are legally in the wrong and the idea belongs to the company. But, proving the reality that you are stealing the idea from the company is harder if there is nothing in writing. An email discussing an idea while you are employed would have to be disclosed in litigation with your employer over whether the patent applied for belongs to you or to your employer under an employment agreement. If you didn't put it in an email, it wouldn't exist to turn over in litigation. | Restraint of trade clauses are tricky. They are only enforceable if there is a legitimate interest which needs to be protected and only to the minimum extent needed to protect that interest. Therefore, you must have specific business knowledge (algorithms, code, customer information etc.), not general knowledge (stuff taught in schools or generally available) and preventing you working for a competitor is the only reasonable way of protecting it. If this is so then 6 months is not unreasonable. Assuming that the clause is valid then for you to take a job with a competitor is a breach of contract and you would be subject to all the normal sanctions including an injunction to stop and damages. Your new employer is not exposed as they are not a party to the contract, however, if you are forced to breach your new employment contract then they can sue you too. In both cases the employer has to initiate action and it may not be worthwhile. You can take the risk if you want but you should seek legal advice. | Is there any legal doctrine whereby E's agreement with A continued to apply to E in his work for company N? No, because the parties to the non-compete agreement were Employee E and company A, not the human who owned and sold A. What about B? Do they have any standing to block E's going to work for a B's customer? No. My rationale is that the decisions you describe result in a waiver of the non-compete clause. An employment relation between B and E never existed. Thus, the only vestige of B's non-compete rights binding E that could have been preserved stem from E's former employment at A. However, that vestige disappeared at the instant B --apropos of the hospital project-- waived its non-compete clause with N. Given B's waiver with regard to N, N's failure to establish a non-compete clause with E enables the latter to conduct business with (or accept employment at) the hospital. If anything, B would have standing to sue N for negligence or related torts. But neither B nor N has any viable non-compete claims against E. | 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. |
Can a fine incrue interest? Can a fine be/become unreasonable? In the United States, there are certain situations where you must pay a fine that government in the United States puts upon someone. However, is it legal to impose a fine greater than what a person is capable of paying? Let's say a homeless man (no income, no assets) commits a felony, and must pay back a fine of $100,000. Is that legal? Most laws say that X felony/misdemeanor deserves "a maximum of $X fine, X amount of years imprisonment, or both." Anyone can serve imprisonment. Not everyone can pay a fine. If it is, what happens when they don't pay the fine? Can the fine incrue interest? Can you declare bankruptcy on a fine? | Bankruptcy does not obliterate legal financial obligations (taxes that you owe, fines, etc.). Fines either do or do not (any more) accrue interest, depending on jurisdiction. Fines for criminal conviction can accrue interest. By law, no fine can be unreasonable, but there is no simple determination of what is reasonable versus unreasonable. The matter reduces to whether the penalty would be grossly disproportionate to the gravity of the offense. Federal law suggests a upper-ballpark of $250,000 for an individual felony or $5,000 for an infraction, but there is no actual upper limit, for example a crime resulting in pecuniary gain may receive a fine of twice that gain, so fines can be in the hundreds of billions of dollars. The government can seize property including wages in order to satisfy a legal financial obligation. However, you can not be imprisoned because of an unpaid fine, although you can be imprisoned for willfully not paying a fine when ordered to do so (there is no legal clarity as to what constitutes "willful" non-payment). As noted in this article, seemingly small fines can balloon to large sums (they cite an example of a 4-fold increase in initial fine owing to interest and similar increases. | Yes, the correct forum is the Local Court in the relevant state (in some states these are called Magistrate's Courts). The amount is too large ($10,000) to qualify as a small claim . If you want to do it yourself the court websites are very informative and in NSW, at least, the process can be initiated online including your paying for the Sheriff to serve the summons (they will not find the person, you have to give them an address). After being served they have 28 days to file a defence or you can get a default judgement and begin recovery. If they do file a defence then things will get more expensive. Of course, you may want to hire a local lawyer. | We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions. The debt collector is probably either the owner of the claim against you, if it is an assignee of the claim, or an agent of the landlord for purposes of collection. Thus, payment to the debt collector is equivalent to payment of the landlord. The law varies from jurisdiction to jurisdiction regarding whether payment constitutes of waiver of a right to sue over the debt. Sometimes it is necessary to designate the payment "under protests" or "reserving all rights", but that is not a uniform rule of law that applies in all jurisdictions, and I do not have the time and familiarity with that state's law to research Massachusetts case law on that point accurately. | Anyone found not guilty may apply to the judge to have his legal costs paid out of central funds; this is not automatic, but is usual if the court agrees that the charges should not have been brought. The amount payable is set out by regulations depending on where the case was heard; since October 2012 it has been set at legal aid rates, which are unlikely to cover a full defence team. Somebody who did not have a lawyer can charge for the time he himself spent on the case, but this is assessed at a standard rate similar to minimum wage, even if he happens to be an expensive lawyer. No compensation is payable for health or other problems incident on a criminal case; it is considered a part of the rule of law that charges will be brought against defendants, and that some of them will be found not guilty. It may, of course, be possible to sue the complainant for defamation or even to bring an action for malicious prosecution; a lawyer would have to advise on this, but the mere fact of acquittal is certainly not enough to found an action. | A car loan is technically called a "secured debt" and some states have a law called "defrauding a secured creditor", or something similar, that can cause mere failure to pay a debt or to voluntarily deliver the collateral to the creditor to become a type of theft or another crime in some circumstances. Usually, even then, there must be evidence of an intent to defraud the creditor and not merely an intent to fail to perform a promise to a creditor. For example, in Colorado there is a criminal offense entitled "Concealment or removal of secured property" at Colorado Revised Statutes § 18-5-504 which states: If a person who has given a security interest in personal property, as security interest is defined in section 4-1-201(b)(35), C.R.S ., or other person with actual knowledge of the security interest, during the existence of the security interest, knowingly conceals or removes the encumbered property from the state of Colorado without written consent of the secured creditor, the person commits a class 5 felony where the value of the property concealed or removed is one thousand dollars or more. Where the value of the property concealed or removed is less than one thousand dollars, the person commits a class 1 misdemeanor. But, the default position at common law and under the Uniform Commercial Code, is that merely passively not paying a debt or passively not turning over collateral for debt to a creditor is not a crime. | Since you asked, and it's a perfectly legitimate question, here's why it doesn't violate the Fifth Amendment (from Garner v. US): The Fifth Amendment doesn't say "you can't be made to say anything that hurts you." It says "no person...shall be compelled in any criminal case to be a witness against himself." The only time Fifth Amendment protection applies is if you are being forced by the government to make a statement that could open you up to an accusation or conviction of a criminal offense. It's fairly broad (if it would help prove any aspect of the charge, you can claim immunity), but it's also restricted (you can't claim it unless it really would tend to incriminate you). That means that you could only argue the Fifth Amendment if your tax return might help prove a criminal case against you (the fact that disclosing income leads to you needing to pay tax does not qualify as "self-incrimination"). But the amount of income is not one of those things that might incriminate you -- you can get income through all sorts of ways. The thing that is incriminating is revealing the source of the income, and you can claim Fifth Amendment privilege for that. So: The only time you could possibly claim privilege is if you were being forced into a statement that might tend to incriminate you in a criminal proceeding. A statement that makes you liable for tax doesn't mean it might incriminate you. Filing an income tax return isn't inherently incriminating. The fact that you have income not included in any other part of the return (illegal income goes under "other income") doesn't imply you've committed a crime -- lots of people have other income. The amount of income can't be incriminating. The source can be, but you can claim Fifth Amendment privilege for that if it might incriminate you. And lawful income under "other income" still might give rise to a reasonable fear of prosecution, so the fact that you're justified in claiming Fifth Amendment privilege in source of income doesn't mean you're guilty of a crime. Note that there are cases where you are flat-out exempt from filing tax returns under the Fifth Amendment: Marchetti v. US and Grosso v. US found that registration and tax on gambling could be blocked by a Fifth Amendment claim, which didn't even have to be asserted at time of filing, because merely filing the special return would establish you as a gambler (heavily regulated/often criminalized at the state level). The difference with the normal income tax form is that everyone (just about) files one, and so filing it doesn't mean you're a criminal. If there was a separate line along the lines of "Income from Illegal Drug Sales," that might be one thing (anything other than $0 is inherently incriminating). But all the questions are broad, and have many legal sources of income associated with them. | united-states Minimum sentencing laws do not prescribe any punishment for a judge that simply refuses to obey them. See 18 U.S. Code § 3553 as an example that explains how sentencing must be enforced, yet no mention of punishments for violating these laws. It also makes mention of how minimum sentencing can be avoided by a judge lawfully as well. Judges do not risk jail time or fines for breaking these laws, as they have judicial discretion, which is literally a power defined by what it means to be a judge, to hand out whatever sentence they think is appropriate. (Note: there may be exceptions, but I couldn't find any. If any such examples exist, they are likely rare) If a judge refuses to hand out an appropriate sentence by these laws, there are options available. The two main choices are by review, and by appeal. The review board has a few options. They can accept the lower sentence, they can reject the sentence to have the judge resentence, or they can assign the sentencing to a different judge. By way of appeal, the prosecutors can choose to appeal to a higher court. Eventually, either the sentence will become fixed at the reduced level, or it will be corrected by someone else in the system, if not the judge, then either an associate or superior. Either way, the odds are stacked against a rebel judge. However, at least one documented example of this exists, the story of Judge John Coughenour (linked below). He sentenced the same person three times for the same crime, and while he eventually did get a "victory," the story goes to demonstrate that (a) judges can rebel and get some effect, and (b) even as hard as he fought, he wasn't punished, but he also didn't get nearly the effect he was hoping for, despite a promise from the government to reduce the criminal's sentence in exchange for cooperation. While judges can be censured, reprimanded, removed from office, voted out (at least, at lower levels), and impeached, most of these punishments are reserved for situations of corruption, bribery, etc, rather than simply executing their judiciary discretion, which is one of the core powers granted to them by the judicial branch. Further Reading: One judge makes the case for judgment 18 U.S. Code § 3553 - Imposition of a sentence | Yes Presidential pardons only deal with breaches of Federal law. So, if the punishment is a fine then that penalty is waived. However, if the fine is punishment for breach of state law, the pardon does not touch it - he would need a pardon from the relevant state Governor(s). But Anthony Levandowski is not being punished with a fine, he was punished with a jail term. What he owes Google is damages for breach of contract or a tort, both civil matters and almost certainly under California law, not a punishment for an offence. This is not something he can be pardoned for by a President (if under Federal law which is unlikely) or a Governor (if under state law). His actions constituted both an offence against the state, which can be pardoned, and caused damage to another person (Google) which can’t. He owes this money as a debt just as if he had bought something from them or borrowed money from them. |
What countries blindly protect their own citizens from extradition? I was surprised to learn (in the background for the recent protests) that a Hong Kong resident can murder someone in Taiwan and go back to Hong Kong with no consequences (by the way, the murderer is actually imprisoned now in Hong Kong for a few years because he used the victim's money in Hong Kong, but I want to consider a hypothetical case for this question where he took no money). Since USA has no extradition treaty with Taiwan (though USA has many more extradition treaties than Hong Kong has), could a USA resident do the same thing without penalty? In other words, even with proof sent from Taiwan and a confession, would USA really not be allowed to send the murderer to Taiwan or somehow penalize him? This is hard to believe, so I wonder if there's a special law to deal with this in USA similar to the law being considered in Hong Kong. I have reviewed this similar question for a less serious crime which makes me think the USA state might be important, so assume California. Also, every extradition treaty I have read is retroactive (meaning crimes before the treaty was signed can cause extradition). Is that usually true? Is the new proposed law in Hong Kong retroactive? | The default is that countries are not required to repatriate alleged criminals It is one of the cardinal provisions of sovereignty that one country cannot "reach into" another country's territory for any reason. However, countries can voluntarily repatriate an alleged criminal subject to their own legal systems allowing this. This can be ad-hoc or through a longer-term extradition treaty. Even where extradition is allowed, there are common things that will prevent it: Dual criminality - generally, the alleged crime must be a crime in both jurisdictions, Political crimes are usually not subject to extradition Possibility of certain types of punishment - nations without the death penalty will generally not extradite for alleged capital crimes. This can be overcome with appropriate guarantees that such a penalty will not be sought. Jurisdictional issues Own citizens - some countries will not extradite their own citizens notably Austria, Brazil, the Czech Republic, France, Germany, Japan, Norway, the People's Republic of China, the Republic of China (Taiwan), Russia, Saudi Arabia, Switzerland and Syria. Fair trial standards - extradition will usually be refused when a fair trial cannot be expected. | While the point made by user6726 is not wrong with respect to this particular statute, it doesn't address a more basic point about how the supremacy clause works. Federal criminal laws govern punishments for federal crimes in the federal criminal justice system. Federal prosecutors bringing federal criminal charges against criminal defendants in the federal criminal justice system can and do secure death penalty sentences against criminal defendants in states where there is no state death penalty. One recent case where that happened was the Boston Marathon bombing case where a defendant was sentenced to death in federal court for the crime for violation of a federal criminal statute, despite the fact that Massachusetts has no death penalty of its own. This is not a supremacy clause issue. No state law had to be changed or invalidated because of the existence of the federal law. States law governs how the state criminal justice system works, not the federal criminal justice system. When we say that a state has abolished the death penalty, we mean that it has abolished it in the state criminal justice system. This doesn't absolutely foreclose the possibility that the death penalty will be imposed in that state on federal charges, although it does make it far less likely that the death penalty will be imposed. Partially, this is because "blue collar" crime is handled by the states. Partially, this is because out of comity and a concern that juries in states without a death penalty are less likely to vote for a capital sentence, federal prosecutors are less likely to seek the death penalty in a state without capital punishment than in a state with capital punishment. For example, there are 2,902 people on death row as of 2016, in the U.S. Almost 98% of death penalty convictions that have not yet been carried out were obtained in state courts. Only, 62 involve civilian death penalties imposed in federal courts (mostly in states that have the death penalty) and another 6 involve death penalties imposed in military courts (mostly in states that allow the death penalty or abroad). All of the other cases arose in state courts. | 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." | Extradition is done for specific charges. A principle found in virtually all extradition treaties called the "rule of specialty" says that the country requesting extradition may not prosecute the defendant for any crimes except the ones for which extradition was granted without the permission of the extraditing country, except for crimes committed after the defendant is extradited. This protection expires once the defendant has been released from jail and had a fair chance to leave the country. The rule of specialty doesn't necessarily mean the other charge needs to be dropped, but the defendant can't be tried for it as long as the rule applies. If they're later in the country for another reason (or don't leave when they have the chance), they can potentially be rearrested for the other crime. But as long as they're only in the country because they were extradited, they can't be tried for any other past crimes without the extraditing country's permission. | All ex post facto laws are unconstitutional in the United States. But, not all retroactive laws are unconstitutional in the United States. An ex post facto law is basically a law that retroactively makes conduct illegal or punishes it more severely than it was punished at the time if it was already illegal. By way of example, tax legislation is often constitutionally retroactive, and laws that retroactively make the punishments for acts that are crimes at the time more lenient (or retroactively grant amnesty for previously illegal conduct) are legal. I strongly suspect, but do not know for certain, that India's constitutional law makes the same distinction that U.S. constitutional law does in this regard. | It depends Law in international airspace over international waters is the law of the country the plane is registered in - just like a ship is considered land of the registered/owner's country while in international waters. This is, according to the Britannica, also called the quasi-territorial Jurisdiction. So if this were a Lufthansa Flight, technically everything there happens in Germany under the Tokyo Convention and German Law (StGB §4) and the case can be held in Germany. For United Airlines it means, that the act happened in the US and if it was an Air Japan flight, it would be Japan, no matter in which airspace it happens. However, other laws might also make the law of other countries apply and put the people into the jurisdiction by virtue of law applying globally: if the perpetrator or victim were US citizens, any felony that happens between the two on that flight can also be prosecuted in the US, as they claim jurisdiction in those cases. Similarly, the UK and Germany have similar laws, in the latter case for only a subset of crimes (StGB §5, 6-11a). This is the principle of personal jurisdiction. But technically, the quasi-territorial jurisdiction can override that. And that again is overridden once the plane lands and enters the territorial jurisdiction of the harboring country. All involved countries can elect to prosecute or not, and there is no double jeopardy problem as we have separate sovereigns. Who is most likely to prosecute? Depends on the case, but in the least, the country of registration has Jurisdiction and will usually get the first crack at the case. However, extradition treaties and other treaties between two countries can give preference to the country of the nationals. BTW: we had pretty much the same question for murder on a plane. | It is unlikely that the US, or any government, would condone any kind of crime. The reason for this is that the law must be seen to be impartial and applied fairly to all those subject to it. What happens if tomorrow, the government decides they don't like you? It is possible that this type of activity, or activity amounting to it, would be sanctioned in specific, authorised cases. But the government throwing a lynch mob at anyone is a bad idea for order and a peaceful society. | There is a relevant Q&A here about how ex post facto is defined in the United States. Not all law is about crime, and that includes NY rent control laws; violating them does not lead directly to a criminal prosecution, hence a sufficiently strict definition of ex post facto cannot apply to them. And such a sufficiently strict definition has been the explicit one since 1798, when the Supreme Court ruled in Calder vs. Bull ("law that makes an action done before the passing of the law, and which was innocent when done, criminal [...] law that aggravates a crime, makes it greater than it was [...] law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime", etc.). Notice that Article 1 Section 9 prohibits Congress (i.e., the Federal Government) from doing exactly the same thing, so if ex post facto refers to any kind of law, then there could not be any retroactive laws passed in the United States, period. However, the Supreme Court has apparently already set further, more recent, precedents, making it clear that this rule does not apply to tax law. I would assume in this case the intention is to retroactively extend the old law, i.e., if the old law expired on the 15th and the extension passes on the 20th, that extension will be retroactive to the 15th. If the extension then continues until a new law is in place, there will be no time period under which one or the other did not apply. Despite the wording in the news article, I do not think the intention is to make the new law retroactive, only the extension of the old one, for the simple reason that the legislature would never agree to pass such a brand new law later and no matter what it contains say it will be retroactive back to the original expiration date of a law it replaces even after they already extended that until there was a new law. That is borderline non-sensical. The Daily News blurb certainly makes it sound like it might be that way, but I think this is a bit of intentional obfuscation -- the way in which a partial quote is used in the first paragraph is indicative, and the Daily News is, well, the Daily News. |
Would it have been legal to step in and prevent the death of George Floyd? (Interfere with arrest to save a life) I know this is a viral topic right now but I don't mean to ask it simply for the sake of hype and controversy. I am genuinely curious about it. If this question isn't appropriate here, please advise me of a better place to ask it. Here you can see the arrest of George Floyd (warning, potentially disturbing): [Link]. In the video you can see the officer lethally pinning Mr. Floyd on the ground. It seems neither of the two officers were aware that Mr. Floyd would soon die because of the pinning. Many of the bystanders were worried that Mr. Floyd was being seriously hurt, but it's hard to say if any of them knew that Mr. Floyd was in grave danger. In any case, none of the bystanders were able to interfere because either they then would be arrested, or the police might then have justifiable reason to shoot and kill them. Question: Suppose you were a bystander and you 100% knew that if the officer (Derek Chauvin) continued to pin Mr. Floyd with his knee on the ground, Mr. Floyd would die. Is there any way you could legally interfere and save his life? For example, would it be okay to step forward, announce something like: "Officers I am completely unarmed. The way you are pinning that man is lethal (for XYZ reasons) and he will soon die if you continue. Please detain him in a non-lethal way." (*wait 10 seconds) "Please stop or I will push you off. Once again I am totally unarmed (*show hands). I only wish to prevent you from unknowingly killing this man." (*wait 10 seconds) "I am now going to push you off." (proceed to push the officer off Mr. Floyd) | It is premature to judge the particular case because the facts are not all available. But we can address the general principles. The Model Penal Code 3.04(2)(a) sets out the general principles clearly. A person has the right to self-defense against unlawful force. But, the use of force is not justifiable to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful. But more specifically under (b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat However, there is a further condition that force is not justifiable if the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take Then finally, §3.05 says that this goes for people using force in defense of others. The short version is that the common law right to resist illegal arrest has been supplanted by a statutory requirement to submit to police authority, for example in California and New York. In Ewumi v. Georgia, defendant was illegally arrested and physically defended himself, which resulted in a battery charge and conviction. The battery charge was overturned because the arrest was illegal ab initio. If one resisting an authorized arrest, where an officer's force is likely to result in unjustifiable great bodily harm, the question is whether a reasonable person would find it necessary to resist in self-defense. It is unusual for the courts to find that to be the case. Minnesota law says that reasonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist: (1) when used by a public officer or one assisting a public officer under the public officer's direction: (a) in effecting a lawful arrest Other sections say that a person who is not a public officer may use force to effect an arrest, or, "(3) when used by any person in resisting or aiding another to resist an offense against the person". Being arrested by the police is not an offense, and none of the other justifications for use of force apply. | For the record, factual impossibility is rarely a defense to a crime. In United States v. Thomas the court decided that men who believed they were raping a drunken unconscious women were guilty of attempted rape, even though the woman was dead at the time. In this case there is no facts that made the offense impossible to commit. The suspect clearly submitted a false prescription and obtained the drugs he or she wished to obtain. There is no impossibility. Instead the police officer, as the saying goes, has the suspect "dead to rights". This is not legal advice. Consult an attorney for that. | The powers given to law enforcement professionals will be detailed in the relevant law that establishes them. I would suspect that the decision to cordon off an area would fall within the purview of the officer on the scene; the idea that a police officer would need to seek permission before cordoning off a motor vehicle accident or chemical spill is unworkable. I would also suspect that other emergency personnel (e.g. ambulance and fire-fighters) would have similar powers. However, such cordoning off would be a temporary measure and if it was maintained for an unreasonable period it would be open to challenge through an administrative or judicial process. If the police decided that a feature was a permanent hazard then they could seek a court order on the owner of the property to provide some measure to adequately protect the public, by either removing the hazard or providing some permanent barrier, under whatever laws seemed most appropriate. | We don't have enough facts to know. What Bob said about having violated the injunction, which could expose him to criminal contempt of court liability, was not true. But, the precise details of what he said, to whom he said it, and his relationship to the case, are not clear. Saying something that isn't true isn't always against the law, and even when it is against the law, the consequences depend upon the context. An intentionally false statement of fact to a police officer or to the court under oath would probably be a crime (but, unlike U.S. practice, criminal defendants who testify are not generally required to testify under oath). An unintentionally false statement of fact to the same persons (e.g. because Bob misheard the question or was drunk at the time and assumed that the statement of fact he was making was true or had dementia) would probably not have legal consequences for him. A mere confession - I am guilty of violating the civil injunction - would probably not be perjury or fraud because guilt of a civil injunction includes opinions and legal conclusions which are not actionable, as well as implied statements of fact, which might be actionable. But, if he confessed in the form of a plea, there probably wouldn't have been a trial at all. Once he made his plea, his factual guilty or innocence might be irrelevant in the face of a judicial admission. Courts can sometimes sanction parties to lawsuits for wasting everyone's time under quite specific circumstances, but we don't know precisely what relationship Bob has to the case in which the injunction was entered. | The citation could be written but it should be easy to beat. In the circumstance that you describe the accused could just say the he was not driving his car at the time. If the prosecution is a sham with all your friends saying you all saw this thing, then the defendant can bring all of his friends to say that he was at some other place. The benefit to having a cop on the scene is that the cop will get ID and positive identification. The other thing the cop has is expert judgment. If a cop sees unsafe lane movement and writes a ticket, his testimony in court carries more weight than the "it was not unsafe!" testimony of the accused. Keep in mind, getting all of your witnesses to court on the same day, after continuances and other delays, and getting them all to tell the same story to overcome the presumption of innocence is no small feat. All that to say, it's easier with police as witness. There are two mechanisms which could get you where you want to go. Private prosecution and citizen's arrest. Private prosecutions are a part of history but not strictly unavailable at the state level. You could write up some charging documents to see if you can get your target indicted. Citizen's arrest is interesting because the rules are fairly unclear unless governed by a specific statute. There are two necessary parts of citizens arrest and the first part gets the attention. The first part is the detention (arrest). The crimes for which a citizen can legally detain a suspect are likely defined by state statute. The second part is giving testimony about the witnessed crime. Let's assume that you see a felony happen and watch the perp walk into a gas station bathroom. You are prepared to arrest, do part number one, and then call the cops, to do part number two. But while you wait for the guy to come out of the bathroom a cop walks up. You explain the felony and the cop goes into the bathroom and arrests the guy. It's purely witness testimony that led to the arrest and the indictment (physical evidence - let's say there is none) and even the trial. You successfully get the guy indicted and when you show up to testify you tell the story as you witnessed it. Now the accused gets to take the stand. When he takes the stand he says, "it was the other guy." When asked, "what other guy?" He says, "I was in the bathroom and a guy ran in and went into the stall. Then a cop came in and arrested me." Reasonable doubt right there. How much more if it's a bunch of friends ratting on some lone driver? Police need evidence. Prosecutors need evidence. Judges need evidence. | As mentioned in a comment by @Dancrumb, the exact policies of each local police department will be different, and there are thousands of them. There is a relevant requirement at the Federal level according the Department of Justice, but it is not clear to me to what extent this applies to peers and not just supervisors: An officer who purposefully allows a fellow officer to violate a victim's Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them. | No Law enforcement are allowed to use “reasonable force” to effect an arrest. They are also allowed to use reasonable force to prevent imminent harm to people or property. As described, the felon is not a danger to other people or property and a drone strike would be an ineffective means of effecting an arrest. The force used is not reasonable. Nor can the drone be used as a means of lawfully carrying out the sentence. An execution in the USA is a highly formalised legal process and must be done strictly in accordance with the law to ensure it is not "cruel and unusual". Blowing people up with high explosives which may or may not kill them is not an authorized method of legal execution. | Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception. |
Which jurisdictions have made it illegal for people to travel to other jurisdictions for abortion? It is well-known that some people who wish to obtain an abortion that is prohibited in the jurisdiction where they live will travel to another jurisdiction where said abortion would be legal. Last year, the US state of Georgia tried to criminalize such travel for abortion. In which jurisdictions is this currently illegal? (Assume that the person is an adult and they are travelling of their own free will.) In which jurisdictions was it illegal at some point in the past? When were such laws repealed? | It is probably illegal in all of the jurisdictions in the US where a fetus is legally declared to be a person and where the murder statutes are written to not explicitly exclude abortion: that is, in no jurisdictions. No law existing or proposed for Georgia specifically addresses "travel for the purpose of getting an abortion". The underlying theory behind the claim (advocated by some Georgia attorneys) is that a person may be open to a conspiracy charge for taking a woman to another state to get an abortion, which would be a crime if committed in Georgia. If a conspiracy exists in Georgia to do something illegal (in Georgia), that is a violation of OCGA 16-4-8 ("when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy"). The substantially same law exists in Washington, and most if not all other states. The theory is apparently that "conspire to commit a crime" means something like "conspire to perform an act which would be a crime if performed in in this jurisdiction", e.g. "purchase marijuana, or take a job at certain payday loan companies". No state has successfully claimed extraterritorial jurisdiction, where a Georgia resident can be prosecuted in Georgia for a legal act carried out in another state, so this theory is a bit of a stretch. | It is difficult to keep track of the rapidly changing legal variables, but it would be illegal and unconstitutional for state police to set up an unauthorized stop-and-search checkpoint on the road ("due process" means "following the law"). As a prelude, there would have to be some higher authority that empowers them to do this. You would have to scrutinize the emergency powers legislation of every state to be certain, but no governor has the power to mandate blanket body searches in case of a medical emergency. (Martial law shifts enforcement of the law to the military, but doesn't generally create arbitrary decree-writing powers). The legal foundation of such searching would have to be a new law: then the question is what the law requires that could make on-the-road body searches constitutional. Since the right to be free of unreasonable searches is a fundamental constitutional right, this law would be reviewed under strict scrutiny. Searches "just for fun" will not pass such scrutiny, nor will "because it's an emergency" or "keep the public safe". Having the disease is not and cannot be a crime, so this law would have to be founded on a strict no-travel requirement. That brings the matter within the sphere of the "officer safety" exception in the case of an arrest. I'm not suggesting that an absolute travel ban would be upheld as constitutional in the US, but that is the kind of legal foundation that would be required for state police to force people to be Covid-searched. | A problem with the question is that it uses the loaded term "victim". If you change the question to "Are there actions that you can perform involving another person, which are crimes even if the other person consents to participating in the action", then there are very many. Selling alcohol to a minor; selling heroin to anyone; selling sex in most US jurisdictions; selling firearms to a convicted felon. Also, for a physician to assist a person in suicide, in most states. Formerly in the US, various forms of sexual intercourse were acts that consent did not make legal. Whether or not the person is a "victim" in these cases is open to debate. In the case of physician-assisted suicide in Washington, the doctor is allowed to prescribe (oral) drugs that the person ingests: only a doctor is permitted to do this, both under the DWD Act and as a consequence that only a doctor can prescribe the drugs. There seems to be a belief that it is a crime to assist a person in committing suicide, which is probably correct if the assistance is shooting the person in the head, or in general directly causing the death (thus, "I give you permission to shoot me in the head" doesn't cut it). But from what I can tell, it is not generally against the law in Washington to help a person who commits suicide (e.g. supplying the means of self-dispatching). In some countries, suicide and helping with suicide is illegal, e.g. in Kenya Penal Code 225 says Any person who (a) procures another to kill himself; or (b) counsels another to kill himself and thereby induces him to do so; or (c) aids another in killing himself, is guilty of a felony and is liable to imprisonment for life. No exception is created if the person consents to being aided to kill himself. | So far as I can see, no US law required an airline to demand written parental consent for a passenger aged 17 in 2004, nor does any law requires such consent now. A passport could probably have been required. Minors in general may make and enforce contracts, including those for purchase of travel services. Parental consent is only required for a few specific activities, and air travel does not seem to be one. The question asks "Was I liable at 17 or 18...?" Liable for what? There is no liability unless there is wrongdoing or negligence or at least harm to someone. I don't see what there was to be liable for here, so there is no reason to try to determine who was liable. Had a law been violated, it would make sense to ask who was criminally responsible, but apparently none was. If no one was harmed there is no civil liability. I am not clear why the OP thinks there was a legal problem. Nothing in the question indicates that there would have been. | In this specific case and location, the precise location of the incident was explicitly made a public space via state law not too long before this actual event. They therefore most certainly have no right to privacy. What is interesting to me though is the other side of this, does someone have the right to record others in public spaces, or is it simply not illegal? For instance if I non-destructively and non-violently "jam" your camera by shooting a low-power IR beam at your lens, have I abridged a legal right of yours? I don't think it would be illegal to do this. I am not even positive its against the 1st Amendment. The 1st Amendment relates only to the dissemination of information, not the collection of it. The Constitution doesn't seem to compel the gov't to make information available, or even to make things/events/spaces observable. The various "sunshine" laws after-all had to be enacted, it wasn't part of an interpretation of the 1st Amendment. To put a finer point on it, is recording events in public spaces legal or merely lawful? | The general answer is "yes." Who ever said that only one set of laws applied? Jurisdiction isn't a matter of "one country's laws matter here, let's find out which one it is." All jurisdiction means is that your laws apply to the conduct, not that no one else's can as well. Broadly, there are a few sources of jurisdiction that are generally considered legitimate (to at least some degree) in international law: Territoriality: You have jurisdiction over actions performed in your territory. You also have jurisdiction over crimes where just one part of the crime happens in your jurisdiction (e.g. standing in country A and shooting someone in country B), or even if it just has a significant effect in your territory. Nationality: You have jurisdiction over crimes committed by your citizens anywhere in the world, regardless of whether or not they were breaking the law of wherever they were. Passive personality: You have jurisdiction over crimes committed against your citizens anywhere in the world. Protective: You have jurisdiction over crimes directly harming core state interests, like counterfeiting your passports or sabotaging your warship. Universal: A handful of crimes (like piracy or genocide) are so serious that every country in the world can exercise jurisdiction. If you catch a pirate, you can punish them. These are accepted to different degrees. Passive personality and protective jurisdiction tend to be iffier; territorial jurisdiction is unquestioned (although if it's just based on effects in your territory, it becomes a bit iffier as well). But any of them can be a basis for jurisdiction. If multiple countries have jurisdiction, whoever actually has the offender decides who will try them (jurisdiction to make an arrest is limited to the country in which the arrest is made). So: If you're located in a country, you have to comply with their laws, and they can regulate just about whatever they want, including what you're doing to foreign computers. The foreign country can also generally regulate what you're doing, because part of what you're doing is happening on their territory. Even if both you and the computer are in a foreign country, you may have to answer to the courts of your country of citizenship. Depending on what exactly you're doing, the protective principle may come into play. For instance, if you hack into a computer on a foreign military base, the foreign country could prosecute you for endangering their security. If you're coordinating a genocide, universality applies and anyone can prosecute you. If you hack the computer of a foreigner, passive personality may apply, although this tends to be controversial. | It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question. | What a country claims to be the case certainly doesn't guarantee what is the case. The constitution (at least as of 2012) of the Democratic People's Republic of Korea (aka North Korea) says: Article 67. Citizens are guaranteed freedom of speech, the press, assembly, demonstration and association. The State shall guarantee the conditions for the free activities of democratic political parties and social organizations. Needless to say, North Korea is not generally considered a bastion of free speech. The People's Republic of China has a similar provision in its constitution. When we get to countries where those outside the country consider there to be some level of freedom of speech, there are still restrictions. In the UK, the Official Secrets Act makes it a crime for any person to republish leaked classified information. Germany makes it illegal to deny that the Holocaust happened. Until 2013, Canada made it illegal for a person to use telecommunications to say something that would expose people to hatred for some reason covered by antidiscrimination law. Many, many countries criminalize child pornography. Many, many countries have copyright laws. "Free speech" does not mean "you can say whatever you want and the government can't stop you." It means "as a general rule, the government can't restrict what you're saying because they don't like it." I am unaware of any country with a functional government with unfettered freedom of speech. |
Why would Twitter not be able to flag / annotate / censor any content it sees fit? https://www.whitehouse.gov/presidential-actions/executive-order-preventing-online-censorship/ As I understand it, the 1st amendment is to protect 'free speech' from government censorship, not platform censorship. Is this not correct? In others words, the first amendment 'leashes' government. UPDATE: a basic constitutional doctrine called State Action. It’s the notion that the Constitution only limits things the government does, not things that private individuals do. (and presumably social media, a private corporation) If the above presumptions are correct, why wouldn't a commercial platform (Twitter, Facebook, social media, etc.) be able to remove or annotate content as it sees fit (i.e. Terms of Service or otherwise)? IANAL and do not understand the purpose of the document | The essence of the order's argument is that in editing user generated content outside of the provisions in one section of the Communications Decency Act (CDA), the platform necessarily excludes itself from the protections afforded by another section of the CDA. The EFF says: ... Even though neither the statute nor court opinions that interpret it mush these two Section 230 provisions together, the order asks the Federal Communications Commission to start a rulemaking and consider linking the two provision's liability shields. The order asks the FCC to consider whether a finding that a platform failed to act in "good faith" under subsection (c)(2) also disqualifies the platform from claiming immunity under section (c)(1). In short, the order tasks government agencies with defining “good faith” and eventually deciding whether any platform’s decision to edit, remove, or otherwise moderate user-generated content meets it, upon pain of losing access to all of Section 230's protections. ... The order also argues that the very popular social media platforms such as Twitter and Facebook are the functional equivalent of the public square, not merely private providers protected by the First Amendment, and therefore should not be able to edit user generated content. The EFF article quotes from a Supreme Court judgment that says "merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints." Recommend the full article: https://www.eff.org/deeplinks/2020/05/trump-executive-order-misreads-key-law-promoting-free-expression-online-and See also Techdirt's article, The Two Things To Understand About Trump's Executive Order On Social Media: (1) It's A Distraction (2) It's Legally Meaningless. [edit] Eugene Volokh wrote a good explainer with background. Regarding the social-media-platforms-become-state-actors argument, see this recent D.C. Circuit judgment on appeal (Freedom Watch v Google etc): Freedom Watch's First Amendment claim fails because it does not adequately allege that the Platforms can violate the First Amendment. In general, the First Amendment 'prohibits only governmental abridgment of speech.' Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Freedom Watch contends that, because the Platforms provide an important forum for speech, they are engaged in state action. But, under Halleck, 'a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.' ... This was a group that alleged Google, Facebook, Twitter and Apple "conspired to suppress conservative political views ... its audience and revenues and succeeded in reducing each". Very similar to Trump's complaints. And "this idea that Section 230 requires sites to moderate in a neutral fashion has become very popular even though it has no basis in reality or law" - Ken White (aka Popehat) in another good explainer and podcast about this. | You'll note that Maryland governor Larry Hogan was sued and ended up settling over Facebook deleted comments and blocks. And a judge ruled that Trump can't block comments on Twitter. So it seems there's an evolving consensus that politicians can't simply block or delete social media comments for differing viewpoints. | This is a complicated question because adblockers have grown increasingly complex in recent years. What it means to "block ads" from both a legal and technical perspective is more complex than it was just a few years ago. First the broad strokes: It's not illegal to block ads. Multiple court cases have defended users' rights to control the information that enters their computers / devices. You have the legal right to view or not view whatever you like. But... that doesn't mean your use of an adblocker isn't in violation of US law. The crucial issue with legality when it comes to adblockers is less about blocking ads, and more about circumventing a websites measures to defeat adblockers. The US DMCA has strict wording regarding 'circumvention of access controls'. If a website has taken active measures to prevent access by adblocking users, and your adblocker circumvents those measures -- this is very likely a violation of the DMCA. The important point here is that the legal transgression isn't blocking ads. It's the circumvention of access controls which in attempt to limit access to adblock users. There's a good write-up on this topic here: https://blockadblock.com/adblocking/adblockers-dont-break-the-law-except-when-they-do/ Additionally, a website's "Terms of Use" agreement may address adblocking. As we all know, website ToU's are not always legally binding on the site visitor. But sometimes they are. There's a good exploration of how to implement a ToU that addresses adblocking here: http://blockadblock.com/adblocking/addressing-adblocking-terms-use-agreement/ | Firstly, because there isn't an explicit Constitutional "right to privacy", per se, and even if there was (and there are arguments that several constitutional provisions amount, in aggregate, to a right to privacy), that it wouldn't be absolute, in the same way that freedom of speech and of the press are not absolutes. Indeed, the closest thing to a right to privacy, the 4th Amendment, has explicit caveats: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (emphasis mine). Thus reasonable searches and seizures, especially those authorized by a warrant, are constitutional. Furthermore, even in light of a constitutional right of privacy derived from this statue, depending on how the "search history" is compiled, the 4th Amendment might not even apply, due to the Katz doctrine, also known as the "open fields" doctrine. Basically, the 4th amendment (as far as searches goes) does not apply to things that are publicly observable; while this would protect a literal "search history" compilation (baring a reasonable search), the searches themselves are public queries, broadcasted over the internet. Anyone watching could compile them into a "search history" themselves. | Ultimately the answer (in the US) is the US Constitution. The courts pretty much have the unlimited power to interpret the law, and the limits on power mainly pertain to what the state can do. The length of the leash on the government depends on what kind of rights are at stake. The weakest and default limit is known as "rational basis", and comes down to asking whether a government action is rationally related to a legitimate government interest (such as stopping terrorist attacks) plus whether there was due process and equal protection. There are more rigorous standards (intermediate scrutiny, strict scrutiny) in case a law involves a "suspect classification", or in case a fundamental constitutional right is infringed. In the case of strict scrutiny, the government would have to show that it had a compelling interest in the action, the law would have to be "narrowly tailored" (i.e. does that thing and only that thing), and should be the least restrictive way to achieve that result. Roe v. Wade is probably the best-know example of that kind of review, which held that abortion laws "violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy". A court would not order a party to do an impossible act. A court could order a party to do something which the party had argued was impossible, but you can interpret a court's decision to indicate that it rejected the argument. The defendant would not shoulder the burden of proving that the action was impossible, though they would have to counter the government's argument that the act could be performed if they believe it is not possible. (In the Apple case, the argument would probably be some Apple-internal document that says "Yeah, we can do it, but do we want to?"). There is probably an expense-related limit in that the courts would not order Apple to liquidate all of their assets to comply. But: if a case were to end up at the Supreme Court, the court is stricken with mass insanity and arbitrarily orders a defendant to do the impossible, there is only the option of impeachment and Senate trial to remove the offending justices, and that is just not going to happen. There is no higher authority that overturns SCOTUS. | This page lists the highlights of case law regarding prior restraint and the First Amendment. Two pertinent cases are New York Times Co. v. United States, where the court held that despite the potential harm of publishing the revealed information, the prior restraint doctrine was more important (the government cannot prohibit speech before it happens). Reno v. ACLU affirms that even if a publication might cause harm to a class of people, that (limited) harm does not justify universally prohibiting the speech. There is no criminal penalty arising from the government censoring speech. A civil lawsuit – "section 1983" – is possible against an official who illegally attempts to suppress expression contra the First Amendment. The award might be just a dollar if the person so oppressed cannot prove actual damage. Technically, the sky is the limit, and it just depends on how outrageous the jury finds the government's action. If the government were to order suppression of opposition to its policies, we could easily be in the territory of world-record awards for violation of civil rights. | The government is prohibited by the first amendment from creating a law which gives preference to one religion over another. Banning entry to persons of one or more religions would do this. | 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. |
Is male child circumcision legal in the UK My Muslim friend didn’t even have to sign any document prior to the ceremony. It was done at home. | In the UK, male circumcision is legal, and only requires 2 things: That consent is obtained, if the subject is too young to give informed consent, the parent can give it. The caveat here is that you have to be able to give parental consent. Simply being the biological father is not enough, an unmarried father is not automatically given "parental responsibility" and must be obtained through courts. That the procedure is performed by a "competent person". This is not necessarily a doctor There also needs to be a consent with both parents. One case in the UK involved a Muslim father wanting to circumcise his son. The mother disagreed and the court upheld the refusal of permission to perform the procedure until the child was of age to decide for themselves. For many, this is a matter of faith, such as with Muslim and Jewish communities. In Jewish communities, the circumcision (a ceremony called a "Bris" or b'rit milah) and the circumcision is either performed by the father or his representative, but is almost always performed by somebody trained in the procedure, dictated by the "mohel" and are usually physicians... Either way, written consent is not required, there are no documents to sign, forms to mail in to the government, etc. The only things that need to happen is that parent(s) who have parental responsibility must agree and consent, and that the procedure be performed by a "competent person". | 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. | Gaining UK citizenship at birth would not count, the law stipulates "after having attained the age of 18 years", so it is explicitly ruled out. (Also, gaining UK citizenship at birth involves no formal declaration.) The scout promise would not count. It doesn't involve swearing allegiance to the Queen, only promising to "do your duty to the Queen"; and an American could argue they have no duty to the Queen. (Also, you might well not have repeated it after 18.) On the face of it, the Oath of Allegiance for the OTC would count - it looks pretty much exactly what the law-makers had in mind. On the other hand, the oath is almost exactly the same as that taken by Members of Parliament, and Boris Johnson took it first in 2001 - but didn't renounce his American citizenship until 2017. (Perhaps it wasn't until 2017 that he finally drew the American authorities attention to the fact he had taken the oath.) | There is nothing illegal about the child asking for nude images, but, depending on jurisdiction and circumstances, there is quite likely to be a serious legal problem with the adult providing such nudes. The exact laws that might be violated would depend a lot on the jurisdiction. The detailed facts would also be significant. But such a situation is fraught with danger, for the adult. Even if there is no ill-intent, such actions could easily be misinterpreted, and might be technically unlawful regardless of intent. Of course, not all nudes are obscene, or even "inappropriate for children". Which are so classified depends on the laws of the particular jurisdiction. | I'm just going to talk about the US. The First Amendment to the US Constitution codifies that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;... What is clearly prohibited by this Amendment would be Congress (or any inferior legislature via the 14th Amendment) restricting the ability of religions which refuse to marry same-sex couples from marrying opposite-sex couples, or in general outlawing any kind of religious law about who a particular church is willing to marry (e.g. only marrying if both parties are of the religion). However, legislatures are generally allowed to influence action via government inducements (I'll just use inducements to describe subsidies, tax breaks, etc). The current precedent for determining whether a particular legislative action violates the Establishment Clause is the "Lemon Test," from Lemon v. Kurtzman, which has the following test: Government action violates the Establishment Clause unless it: Has a significant secular (i.e., non-religious) purpose, Does not have the primary effect of advancing or inhibiting religion, and Does not foster excessive entanglement between government and religion. On the first point, I think the law fails - inducing religious establishments to perform same-sex marriage does not have a "significant secular purpose" because ultimately the government doesn't care whether or not you have a marriage ceremony, just that you sign a marriage certificate with an appropriate witness, which can be a government official. The law could survive on the second point if it could be shown to have at least the preponderance of being for social good, if it is argued that the law's purpose is to make church marriage ceremonies more accessible for same-sex couples by inducing more churches to perform them, and not to harm churches that don't perform them. However, this would probably be an uphill battle, since the law has the practical effect of promoting some religions' beliefs over others. The law probably fails on the third point as well, going back to the previous point that it effectively results in the government choosing one religious practice to promote over another. However, the Lemon Test often criticized or entirely disregarded by the current Supreme Court, for example in the case American Legion v American Humanist Association (a case decided by the current Supreme Court): This pattern is a testament to the Lemon test's shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them. It could not "explain the Establishment Clause's tolerance, for example, of the prayers that open legislative meetings, . . . certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving. Even without the Lemon Test, we can look at Walz v. Tax Commission of New York for an idea of when tax breaks for religious establishments is allowed (emphasis mine): The legislative purpose of the property tax exemption is neither the advancement nor the inhibition of religion... New York, in common with the other States, has determined that certain entities that exist in a harmonious relationship to the community at large, and that foster its "moral or mental improvement," should not be inhibited in their activities by property taxation or the hazard of loss of those properties for nonpayment of taxes. It has not singled out one particular church or religious group or even churches as such;... The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. This paragraph seems to provide some argument both ways. First, the bolded section would seem to prohibit using government inducements to promote one religious practice over another, and that the government can only assist religious institutions when the assistance is applied equally. On the other hand, states are allowed to grant tax relief to religious organizations "that foster..."moral or mental improvement,"..." A legislature could argue that the law promotes "moral improvement" by encouraging acceptance of same-sex marriage, rather than a particular religious belief. However, I don't think that such an argument would prevail over the general prohibition on promoting any religious exercise over another. Government assistance for religious organizations is very thinly held to be permissible only when it is equal. In my opinion, the Supreme Court already has to use twisted gymnastics to argue in favor of any government assistance of religious organizations granted because of their religious status, so they are unlikely to allow something this far (especially since it is usually the conservative justices arguing in favor of these policies, and they are less likely to do same-sex marriage any favors). On the other hand, a permissible policy may be to have government grants for any organization that performs same-sex marriage ceremonies, whether or not that organization is religious. Whether or not that is allowed is likely going to depend on what proportion of the receiving organizations are religious in nature, but there may be enough hotels and other non-religious venues that would qualify that such a law might survive. | 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. | It is not the court's function to educate you in the law and civil procedure. If you don't know then the onus is on you to learn at whatever cost that comes at in time and money. You have a right to justice - you don't have a right to zero cost justice. Just like having a right to bear arms doesn't entitle you to a free gun. | Because in some jurisdictions it is While sexting underage subjects is pretty much a crime universally, sexting of anyone is illegal in many jurisdictions, For example, in most countries that follow Sharia law. |
In the US what is/are the legal definitions of 'workplace'? According to this online USA guidance many US states give smokers the same sort of anti-discrimination class as for example pregnant mothers or other groups. Most states have some laws that protect smokers from discrimination and However, 29 states and the District of Columbia do prohibit discrimination based on legal activities outside the workplace, which includes smoking tobacco. What, in these states, constitutes 'the workplace'? For example, while under mandatory Covid19 homeoffice, while participating in teleconferences from home, is the home a 'workplace' for the purposes of these laws? Can an employer dismiss a smoker for smoking at home during mandatory homeoffice (and on a teleconference) or would this be perceived as discriminatory? | In the US what is/are the legal definitions of 'workplace'? Absent a statutory or contractual definition, the plain meaning is adopted "unless doing so would result in absurd, unintended consequences", Hassell v. Bird, 5 Cal.5th 522 (2018). Pulaski v. California OSHA, 90 CalRptr.2d 54, 69 (1999) points out that "'[w]orkplace' is commonly understood as covering any place where work is performed. This is especially true where worker health and safety is concerned". See also [non-precedential] [Covia Communities v. McInerney, (Court of Appeals of California, Dec. 2019)]3 ("The plain meaning of the term [...] does not limit 'workplace' to one location [...]. Nor does the plain meaning of 'workplace' require that the employer own the subject property"). Thus, a person's homeoffice also fits the definition of 'workplace'. Can an employer dismiss a smoker for smoking at home during mandatory homeoffice (and on a teleconference) or would this be perceived as discriminatory? Discriminatory means that the dismissal is motivated by the status of employee being insofar as a smoker rather than his act of smoking during the performance of work. By way of analogy, consider the laws against discrimination based on a person's sexual orientation: The ban on that discrimination does not entitle the employee to engage in sexual intercourse during a teleconference. Most bans on smoking in the workplace are intended to protect other employees' health and safety. From the remark in Pulaski, it follows that smoking at home during mandatory homeoffice time would not impair other employees' health and safety. That being said, the employer might have valid reasons for prohibiting to smoke during a teleconference. For instance, doing so could be perceived as unprofessional, and therefore detrimental to the image of the company. | Yes, you can be fired for "not being a good fit": New York State is generally considered to be an "employment at will" state, which means that a private sector employer can pretty much hire and fire as he or she pleases and a discharged employee usually will have no legal recourse even when the discharge is unfair or unreasonable. Source: New York State Office of the Attorney General | I cannot recall an example where a breach of such guidance in-and-of-itself is an offence: it's when the underlying legislation is contravened that one is committed. Note that the cited article say this: this guidance is of a general nature. Employers should consider the specific conditions of each individual place of work and comply with all applicable legislation and regulations, including the Health and Safety at Work etc. Act 1974. This guidance does not supersede existing legislation or regulations across the UK More broadly, and away from the NHS, the relationship between guidance and statute was examined in The Financial Conduct Authority (FCA) v Arch Insurance (UK) Ltd & Ors [2020] EWHC 2448 (Comm) where adherence to social distancing measures impacted on safe working practices on building sites, causing delays and an increase in costs. The court determined that: It follows that government advice or recommendations, whether before or after either set of Regulations came into effect, cannot have imposed or ordered a denial of access or a hindrance in access, however strongly worded the advice or recommendations were, since they did not have the force of law. | Are all interview questions that don't apply to essential functions illegal? No. Not all such questions are illegal, but see one exception from California legislation as pointed out by @GeorgeWhite and others in section 432.7 of the state Labor Code. Other jurisdictions very likely have equivalent prohibitions, but questions like the one you envisioned ("What music do you like") would not infringe statutory provisions. Generally speaking, it is lawful for an employer to assess candidates' personality & non-essential skills under casual and not-so-casual scenarios through the use of questions with no relevance to the job at issue. Only in very specific circumstances certain pattern(s) of questions may lead to a finding of harassment or discrimination. Questions related to categories which the Civil Rights Act protects are risky because a rejected candidate would have at least some grounds for a claim of discrimination. Those categories are [candidate's] race, color, religion, sex, and national origin. Questions on those protected categories are not illegal, but the employer will have the burden of proving that its challenged practice (i.e., making seemingly discriminatory questions) "is job related for the position in question and consistent with business necessity" (see 42 USC § 2000e-2(k)(1)(A)(ii)) rather than for purposes of unlawful discrimination. | Legally obtain employee’s covid vaccination status without employee’s consent? No Request employee to provide one. On grounds of what law? Anyone can ask anyone anything, however, I presume you are asking when they can demand to see your certificate. Employers have a general right to issue reasonable and lawful instructions to employees and failing to comply is misconduct. The direction to show a certificate is certainly legal and almost certainly reasonable given the employer’s obligations under Work Health and Safety law. More directly, all businesses in NSW are required to have and update a COVID-Safe Plan. It is perfectly reasonable for them to require employees to divulge their vaccination status. In certain workplaces it may be appropriate for them to mandate vaccinations. Also, there are various Public Health Orders under the Public Health Act 2010 that mandate vaccinations for health care workers, aged care workers (and visitors), child care and care workers. An employer has a legal obligation to check this. In addition, there are requirements under the Public Health (COVID-19 General) Order 2021 under the Public Health Act 2010 requiring some business to check in all visitors to the premises (including employees) including checking their vaccination status. This is what a status check looks like. There are 45 types of premises and events in this category listed in Schedule 5. Terminate employment should employee decide not provide this information or openly declare that they do not want to get vaccinated? What is the law allowing to discriminate the employee on their vaccination status? This is a typical office environment, nothing to do with health care or public sector. Yes. More specifically, refusing a lawful and reasonable instruction is misconduct and, if persistent, may warrant dismissal. If they refuse vaccination in a workplace where vaccines are legally mandated or where the employer has required them (and the requirement is reasonable to protect the legitimate interests of the business), they are similarly disobeying a lawful and reasonable direction. Case law in industries where flu vaccines are mandated is clear - refusal to have them is a legitimate reason for dismissal. There is no doubt this will be good law for COVID vaccines. Decisions on whether an employer not in a mandated industries can make vaccines mandatory have only been made at the Tribunal level so no precedents have been set but the general thrust of these decisions is if it is a reasonable precaution to protect other employees or the public (e.g. if social distancing and PPE is impractical or not likely to be effective): yes. So far, no employee has been successful in an unfair dismissal claim. | As a adult of sound mind, you are responsible for your actions. Background checks for job applications are common place to determine suitability. The employers have the right (and responsibility) to choose what is in their best interest. If through your previous and present actions, they come to the conclusion that you will become a liability to their interests, they will determine that you are not suitable for the position. Not being suitable for a position is not a discrimination, but a determination of fact. Rights and responsibilities go hand in hand. The same is true for the employers. They too have the obligation to act in their own that of their other employees that of their clients interests. In cases where a judge comes to a conclusion that the rights of others are being impeaded, they will most likely decide for that party. It is unlikely that a judge will assume that an individual is the center of the universe and that everyone else must revolve around that individual. | I, semi-contrarily, speculate that the answer is "yes", as long as we understand your question to be about religion, since that is what is legally relevant in terms of discrimination law. The EEOC "answers" the question in 29 CFR 1605.1, saying In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 398 U.S. 333 (1970). The Commission has consistently applied this standard in its decisions. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase “religious practice” as used in these Guidelines includes both religious observances and practices, as stated in section 701(j), 42 U.S.C. 2000e(j). The question then is what the court said in those cases that could possibly be construed as a definition of "religion". The case of Seeger, which pertains to conscientious objector status and the draft, held the following relevant points: The test of religious belief within the meaning of the exemption in §6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Observe that the court does not generally define religion here, rather, it strives to interpret a clause in the Universal Military Training and Service Act, 50 U.S.C.App. § 456(j), which denies that there is a requirement to serve in the military on any person "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form". The statutes more specifically says: As used in this subsection, the term "religious training and belief" does not include essentially political, sociological, or philosophical views, or a merely personal moral code. Congress, then, also did not attempt to define "religion", rather it used that term to refer to certain undefined beliefs (it them becomes the court's job to define the term, relative to the act). Seeger also holds that Local boards and courts are to decide whether the objector's beliefs are sincerely held and whether they are, in his own scheme of things, religious; they are not to require proof of the religious doctrines, nor are they to reject beliefs because they are not comprehensible. This means that, w.r.t. the draft and the religious exemption, the basis for deciding is whether the beliefs are sincere, and whether they are in the subjects "scheme of thing" religious. I also bold the clause about not requiring proof of doctrine, since that will be an issue below. In Welsh it was held that: Section 6(j) contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief, while not exempting those whose claims are based on a secular belief. To comport with that clause, an exemption must be "neutral" and include those whose belief emanates from a purely moral, ethical, or philosophical source. The significance of this is that the conscientious objector clause flouts the Establishment Clause by specifically giving preferential treatment to beliefs founded on a theistic belief, but not a non-theistic belief. Thus, to be consistent with the Establishment Clause, the term "religious" must be interpreted in a way that does not favor theistic vs. non-theistic beliefs. In both cases, defendants were raised religiously but were not members of a church with an officially pacifist doctrine. Quoting Welsh, the defendants neither could definitely affirm or deny that he believed in a "Supreme Being," both stating that they preferred to leave the question open. Both defendants affirmed on those applications that they held deep conscientious scruples against taking part in wars where people were killed. Both strongly believed that killing in war was wrong, unethical, and immoral, and their consciences forbade them to take part in such an evil practice. Thus, "firm belief" is the interpretation of "religious belief" w.r.t. the draft, and is relied on by the EEOC in their definition of religion. The question of whether white supremacism could be deemed a religion, w.r.t. discrimination laws, came up (and was basically avoided) in Swartentruber v. Gunite. The issue there was that the complainant had Klan tatoos, and his employer told him to cover them up. He sued the company (Gunite) for religious discrimination, to no avail. As the court summarized, he would have to show that (1) he has a sincere religious belief, observance or practice that conflicts with an employment requirement; (2) he informed his employer of the conflict; and (3) the religious practice was the basis for the adverse employment decision. His case failed for a number of reasons, but the crux of his argument was that the "Firey Cross" tattooed on his arm is one of that church's seven sacred symbols (he reports that he is "a member of the Church of the American Knights of the Ku Klux Klan, a religious organization"). However, Mr. Swartzentruber does not present admissible evidence, or even contend without evidence, that being required to cover up his tattoo at work conflicts with his religious beliefs This appears to be at odds with Seeger above, because one is not required to prove that ones religion has a particular doctrine. Since Swartentruber represented himself, this could well mean nothing more than that he failed to make an appropriate assertion about his firmly held beliefs (since one is not required to show that their church has a specific doctrine). The basic reason why Swartzentruber's case failed was, simply, that his employer did in fact offer him a reasonable accommodation. Firing a person, on the other hand, is not a reasonable accommodation. Following the logic of Welsh and Seeger and being mindful of the Establishment Clause, one might well expect that an ideological firing would be a violation of the religious discrimination part of the Civil Rights Act. The belief in question would have to be firmly held, but need not be theistic. Since the matter has not been decided by SCOTUS, we cannot know how they would rule if the matter came before them. There is, at least, a clear precedential path where white supremacism could be held to be a religion. In addition, if the incident took place in Seattle, the firing would be illegal because city ordinances prohibit discrimination based on political ideology. | The employer might be liable for a discrimination claim, under the doctrine of disparate impact. See Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc and references cited therein. The idea is that an employer can be liable absent proof of intentional discrimination when a practice disproportionately affects protected classes of individuals, and the practice is not justified by reasonable business considerations. So it would depend on why this particular state of affairs in employment came about. There is a test known as the 80% rule which attempts to quantify the notion of "under-representation" as evidence of discrimination. This test (not widely respected by the courts these days) might constitute evidence of discrimination, if a protected class is demonstrably under-represented. The current standard seems to be by comparison to random selection. In EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, the court found that a grooming policy had a disparate impact on members of a religion (Sikhism), and was thus contrary to Title VII of the Civil Rights Act of 1964, although a requirement to shave does not obviously discriminate on the basis of religion. This points to an important element of a successful disparate impact claim, that there has to be a policy with a causal effect. In the above scenario, there is no proposed policy that has this effect. Note that the burden of proof is on the person suing for relief – they must have a theory of something the company does that causes this hiring pattern, a practice that is discriminatory. The identified policy (whatever it might be) could be justified by a business necessity defense (Griggs v. Duke Power Co., 401 U.S. 424), by showing that the practice has a demonstrable relationship to the requirements of the job. That, b.t.w., would not excuse a racially or religiously discriminatory hiring policy for a factory manufacturing menorahs or kinaras. If a company recruiting locally in Boise ID had a 75% black work force, it would be reasonable to suspect that something was up. But legally, without showing that this results from a unjustified policy of the company, mere statistically anomalous distribution is does not sustain a claim of discrimination. |
NON-COMPETE inside a small country, inside a small profitable market I have received a Consulting Agreement in the middle of a project. I live in Cambodia. The NON-COMPETE clause in question During the Term of this Agreement and 05 (five) year thereafter, the Consultant shall not engage, directly or indirectly, in any capacity, to be in any competition in the Client or any of its subsidiaries, including any company engaged in the business which is in competition with the Company's business. Clarifications from comments @Greendrake Need clarity as to which party is Client and which one is Company. Are they the same thing? Which one do you work for? Company refers to the CEO and his company. I have read the whole contract and "Client" only appears once in that NON-COMPETE. My Questions The market is small for the services I provide. Only banks are willing to pay for the services. Would this clause prohibit me for offering this service to anyone outside the current company I'm working with? The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? If I start my own company, this would also apply to me right? Even if I start a company that provide online courses and don't offer services, this will still apply? Would this make it impossible for me to take any job from any company in the country that provide this service? From your view, how fair is this? Should I expect the CEO to offer a fair contract or is this something you read and negotiate? (This service has nothing todo with legal matters and I'm not expected to be good in legal matters) Country size: around 15 million people market: Only the capital, with less than 50 clients. | The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's & lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms & conditions which are binding and enforceable nonetheless. | The agreement linked in the question seems to be or to purport to be, for a non-final, non-production version of the board. I have seen such agreements used, both for hardware and software, used when beta-test versions of products are being distributed to those who agree to do such testing, often in exchange for a reduced price on the final product, or an early look. I have also seen similar language used when an evaluation version of a product is provided free, or at a much reduced price. In such a use, it would be a reasonable contract, it seem to me, and I see no reason why if it were agreed to by both parties in such a situation, it would not be binding. Often such agreements also include a non-disclosure aspect, but this one does not seem to do so. I cannot see how such an agreement could be made applicable automatically, without both parties having chosen to agree to it, and indicated this by signing, clicking, or in some other positive way. I doubt that it could be made automatically applicable, on an "by using this product you agree" basis. I don't know of any physical consumer product, or appliance, sold with such an agreement in ordinary commerce. I am not sure what would happen if a manufacturer wanted to require all purchasers to sign such an agreement. I don't know if it would be binding. I would think that the purchaser's rights under the First Sale doctrice, could be modified by a valid contract agreed to by the purchaser. I do not think that they could simply be revoked by a contract of adhesion, which the purchaser had no choice to decline before making the purchase. As the OP says this was not signed or agreed to in any way, I can't see how it binds the OP. | Does this prove that the unlicensed attorney is practicing law outside their jurisdiction and is providing legal advice by representing the "client" in legal negotiations? No. Your quote of the email does not prove that the receiver engaged in unlicensed practice of law. Nor does it prove that the receiver/non-attorney is representing, or advising, the attorney's client or the adversary. It is quite possible and valid for the unlicensed lawyer (example: paralegals) to assist an attorney who actually represents the party. | You need to be very clear with B that you intend to continue to operate A. You need to be clear whether you are to be an actual employee of B, or a hired contractor for B. If an employee, you need to agree with B how much time you can devote to A while employed by B, or to put it another way, how much time (per day, week or whatever) you are expected to devote to B before doing stuff for A. Are there to be restrictions, such as a ban on your doing things for A while at B's worksite? Above all, you need to agree on who owns what rights to both the existing A code, and any new code will be held by you, and what rights will be held by B. All the above should be in a written agreement, and you would be wise to have a lawyer draft or at least review the language. If B will not agree to this, you will have a choice to make: put A on hold while working for B, or not accept B's offer. Do not lie to B about what you are doing with A. Oh, and if you had any sort of non-compete agreement at the job you quit four months ago (let's call them C) be sure that you comply with it, or are prepared to fight it. If there is any question, this is another area where you would do well to consult a lawyer. Many non-compete agreements claim more than local law allows, and are not enforceable. Many others are very much enforceable. It depends on the wording of the agreement, and the provisions of the law where you are located. Also, do not use any confidential data from C without C's written permission. | Hire a lawyer, who is licensed and trained in law and who is obligated to be honest with you and advocate for your interests, and get him/her to review your business plan. He/she will point out real or potential problems with your ideas and plans, show you legal gray areas of the law and advise you on what you can and can't do. Some lawyers offer a free initial consultation. As an example, you can browse and read specialties and qualifications for legal help in New Jersey: https://www.justia.com/lawyers/business-law/new-jersey There's no substitute for real legal advice; not consulting with an attorney before signing contracts or starting a business can put in in real legal jeopardy. Don't ask legal advice from randos on the Internet, as they are not trained or licensed, and it is illegal to act or work as a lawyer without being licensed. As ohwilleke points out, you may want or need to consult several different lawyers. | You need professional legal advice You need to comply with the law in every jurisdiction in which you do business. Your place of incorporation is irrelevant. If you are selling to Uzbekistan you need to comply with Uzbeki law, Queensland, Queensland and Australian law, Maine, Maine and US law etc. In most jurisdictions, discrimination is legal unless it is on the basis of a protected class, usually things like sex, race, etc. In the EU, price discrimination is illegal if it is an abuse of market power. Therefore, among other things you have to have market power. https://www.coleurope.eu/system/files_force/research-paper/gclc_wp_07-05.pdf | Usually, a clause like this is used in contracts of full time managerial or professional employees of a business who are employed on a salaried or commissioned, as opposed to an hourly basis, in positions that are exempt from overtime requirements. It basically prohibits moonlighting with a second job while employed at your current job. A non-competition clause, in contrast, would typically prohibit working for a competitor for some period of time after ceasing to work at your current employer. This is concerned about spreading your time and efforts too thin, rather than competition. You could violate it even if your moonlighting job has no direct impact (other than loss of some of your full time services) on the firm that employs you in your primary job. It does not prohibit you from having a personal life (e.g. going to the dentist, visiting family, watching a movie, etc.). Normally, this is used as a backstop against gross abuses, with performance based evaluation as the primary means by which the employee is evaluated. The line between personal investment activity and moonlighting or an intensive hobby can be vague and it is usually only enforced in extreme cases. | First, even if your competitor is operating outside the jurisdiction of your patents, you also have protection from the use and import of the infringing products, not just the manufacture and sale. For example, if you have a US patent, your patent would allow you to sue airlines using your product in the US (e.g., flying into, out of, and/or within the US), even if they bought the product from a foreign competitor. Suing potential customers isn't as attractive as suing your competitors, but at least you would have that option. Further, it is possible to apply for a patent in multiple countries (e.g., through the PCT process), although it can get expensive to try to obtain protection in a large number of countries. You can try to target the main jurisdictions in which your product would be made, sold, or used. For example, you could apply in the US, China, and various European countries (through the EPO). |
I owe rent for a month and my landord is threatening me to move my stuff out of the house (Note: I know a similar question has been asked but this is slightly different in terms of the agreement and I also have specific location information which might help come up to a better conclusion.) This is Covid19 pandemic time and I understand that it is a tough time for everyone. I'm living in a rented single room in a shared-house with a verbal agreement (No on-paper lease) in MA, US. As per the verbal agreement, I'm supposed to pay the rent at the start of every month. Also, there is a 1-month deposit which I had already paid. Also, I'm not sure if my landlord is renting the place legally or illegally. Only, this month (May 2020), I requested him to pay the rent of May & June together by June 15th. Also, I haven't been staying at my house since more than 2 month. But, he threatens me to pay rent of May within a couple of days or he will ask someone to put my personal belongings from my room to somewhere outside the house in my absence and without my permission. Q. Can he legally do that without me giving him permission and in my absence? Any solution or recommendation? Thanks in advance! | Even with a verbal lease, evictions must be done legally; the landlord can't evict you with out going through a legal process that takes time, and can't legally dump your possessions outside, or ask someone else to do it. In addition, according to MassLegalHelp, there are temporary changes to evictions due to Covid-19: • Evictions and foreclosures are on hold. • Your landlord cannot lock you out or shut off your utilities. Read the link Housing - MassLegalHelp for more information and help if needed. | No, it was not done properly See here. You cannot, and the landlord cannot agree to remove your name from the joint tenancy. You can cancel the tenancy for both of you, as can your ex. If you do this, the landlord is not under any obligation to offer your ex a lease on the same terms or at all so they would risk becoming homeless. The court has the power under the Family Law Act to make such a substitution so you can apply to them for such an order. | Laws and regulations often limit or restrict remedies in various ways that may not be intuitive or correspond to popular ideas of legal rights. In the case of the recent US eviction moratorium, the obligation to pay rent was not changed. The only effect is that no action for eviction could be brought for a residential property during the effective period of the order, in situation to which the ordeer applied. The order says (see link above): This Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. To invoke the order a resident must sign a statement declaring under penalty of perjury that: I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary [38] out-of-pocket medical expenses; I am using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses; If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options. as well as various other declarations. The order's justification section says in part: Evicted renters must move, which leads to multiple outcomes that increase the risk of COVID-19 spread. Specifically, many evicted renters move into close quarters in shared housing or other congregate settings The order later specifies that: This Order shall be enforced by Federal authorities and cooperating State and local authorities through the provisions of 18 U.S.C. 3559, 3571; 42 U.S.C. 243, 268, 271; and 42 CFR 70.18. However, this Order has no effect on the contractual obligations of renters to pay rent and shall not preclude charging or collecting fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. ... While this order to prevent eviction is effectuated to protect the public health, the States and units of local government are reminded that the Federal Government has deployed unprecedented resources to address the pandemic, including housing assistance. It would seem that civil suits for payment of debts arising from unpaid rent are in no way prevented, only a remedy of eviction is blocked. That block would apply to any state or local courts, as well as any federal courts. Eviction cases are not normally brought in federal courts. But seizure of bank accounts or garnishment of wages could be obtained, if permitted by state law in a particular case. So might other remedies authorized by state or federal law. | The government of California has an extensive manual that says what you can and cannot do. To terminate a lease (a rental agreement for a year is a lease), there would have to be just cause for eviction (p. 65), such as failing to pay rent, violating terms of the agreement, cockfighting, and so on, and that does not include being a pain in the neck. Nor would the need to make repairs justify terminating a lease. On p. 79 they clarify that retaliatory eviction for exercising their legal rights is prohibited per California Civil Code 1942.5, and will result in fines. P. 35 ff. covers landlords entering: you may enter to make repairs, but must give 24 hour written notice (6 days if mailed), entering between 8am and 5pm business days, but you can also arrive at alternative times orally. If the local code-enforcers require you to do some modifications on the property, that is a separate matter and does not create a just cause for terminating the lease. For instance, if the electric service is not properly grounded and they require you to fix that, that does not constitute the structure "being destroyed". If the repairs make the building actually and certifiably uninhabitable, you might be on the hook for finding lodging for the tenant for the period of the repairs, so ask your attorney about that. Assuming that the tenant is not somehow responsible for the problem being repaired, then you will almost certainly have to keep the person for the duration of the lease. | 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. | Has this contract been translated (badly) from another language because the construction of the clause is cumbersome and confusing? Does the contract say that I can have guests over 1 night without charge? Without charge, yes. However "Without Landlord's prior written consent, Tenant has no excuse to accommodate ..." so you need the landlord's permission for overnight guests. If so does it only start charging on nights after the first? No, if a person stays more than 1 night (with the landlords permission) then this triggers the landlord's right to charge. See below for how much they can charge. Is it supposed to be 10% of monthly rent $137 per guest per night? "With temporary commendation, day-based, and additional 10% of rent each person is applied." The term is ambiguous, I can see three ways that this would be interpreted: If you have a guest who stays more than 1 night in a month they can charge 10% for that guest for that month (i.e. 2 to 31 days all for the same price). For 2 people for 2 days this would be $1,400 x 10% x 2 = $280. They can charge 10% of the monthly rent per night that the guest stays. $1,400 x 10% x 2 x 2 = $560 As, 1 except the rent would be pro-rata. $1,400 x 10% x 2 x 2/31 = $18.06 Assuming that the landlord put forward this contract the interpretation adopted in the absence of other evidence would be the one least advantageous to the landlord i.e. 3. However, there is other evidence - the landlord accepts that the rate is pro-rata - he has just failed to account for the 10%, so 3. again. How is overnight defined? Well, is it defined in the contract or by the law where you are? If not, it would take its normal English usage - "for the duration of the night". If they arrive before sunset and leave after sunrise the next day then they have stayed overnight. What if they came over at 9am and slept in the day? It says nothing about requiring your guests to sleep. If they party overnight then they are overnight guests. If they sleep all day but don't stay overnight they are not overnight guests. What about 2 am? If sunrise is after 2am then this is not overnight. | If it's not in the lease agreement, then you did not agree to it. Even in the absence of the law prohibiting the late fee, the landlord would not be able to impose it because it is not in the lease. It is of course up to you whether you want to test it. It may be more trouble than it is worth. Then again, it's probably not worth the landlord's trouble to begin eviction proceedings over a late fee. Paying late and refusing to pay the fee would probably sour your relationship with the landlord, which is usually something you want to avoid. If you do pay late at some point, you may want to point out to the landlord the relevant provision of Massachusetts law. The matter would probably end there: either the landlord doesn't know about it, or the landlord is hoping that you don't know about it. Pointing it out in a polite manner will inform the landlord of the law and that you are acquainted with the law. Unless the landlord is quite unreasonable, that should take care of it. Whether there is any law prohibiting landlords from announcing an intention to take a prohibited action is indeed a different question. Is there any legal reason for me to bring this up and get the landlord to formally acknowledge that they will not in fact charge illegal late fees? No. You have a contract with the landlord that already says you are going to move in. He cannot modify that contract simply by sending you a letter. | In any legal dealing, there is always some risk. The signature constitutes definitive proof that you have a contract, but you still have a contract, because you have mutual acceptance. A far-fetched scenario is that the lessor could allege that they did not agree to the terms of he contract with you (perhaps claiming that you obtained a blank contract form from them and filled in details, but they didn't agree to those details). However, if they allow you to move in, that is sufficient constructive evidence of a contract, so they could not argue "We didn't agree to this". The main risk would be your lack of proof that they ever agreed to lease the place to you (no emails, no texts, no witnesses, no legally-recorded conversations). There may be specific state laws about providing a copy of the rental agreement, such as this California law, where they must provide a copy to the tenant within 15 days of execution by the tenant. This provides a collection of relevant state laws, though you may have to dig a bit because this is a hook into all of the laws about leases and not just about providing copies. |
Can daring someone to a dangerous act be considered manslaughter? Last year there was a teen sentenced for manslaughter in Massachusetts for texting, calling, and encouraging her then boyfriend to commit suicide over several months; at one point telling him to finish the job when they were on the phone. The case is pending possible appellate action, but it made me think about how her words and persistence that defined the ruling. For example sake, If her or a group of his classmates had dared the young man to jump off a bridge to kill himself, versus just generically encouraging him to go through with suicide, how does that change the situation? Is daring or otherwise inciting action constitute manslaughter, or does it take persistent intent to be manslaughter? If she or they offered him money to do the action, would this have have made the case more clear cut, versus just the mere suggestion to take action? | It depends on the law For example, the NSW Crimes Act 1900 s18 defines murder and manslaughter: (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only. It is possible that the acts you describe could be prosecuted as either murder or manslaughter. For murder the prosecutor would need to prove that they are an "act by the accused ... causing the death charged, was done ... with reckless indifference to human life" - the hard part is the causal link. For manslaughter it is clear that the act "was ... malicious" and that there was no "lawful excuse" - some cause and effect would need to be demonstrated still. However, the prosecutor has a more certain option under s31C: 31C Aiding etc suicide ... (2) Where: (a) a person incites or counsels another person to commit suicide, and (b) that other person commits, or attempts to commit, suicide as a consequence of that incitement or counsel, the firstmentioned person shall be liable to imprisonment for 5 years. It is important to look at the legal definition of a crime to determine if a given set of circumstances meets all the required elements. | It appears you want to go for a defense strategy based on a self-defense argument. This won't work in many jurisdictions, because self-defense usually doesn't apply when you intentionally caused a situation where you knew you would have to harm someone in self-defense. Similar case: Bob regularly mugs old women in the park by threatening them with a gun. Charlie finds out and wants to stop him. But instead of reporting it to the police, he wants to take care of this himself. Charlie get a gun, dresses up as an old woman and waits in the park. When Bob shows up and tries to mug Charlie, Charlie shoots first. Well, anyone else who would have found themselves in a park threatened by Bob with a deadly weapon might have had a self-defense argument. But Charlie knew that by dressing up as an old woman, he would provoke Bob to attempt to mug him. This of course doesn't exonerate Bob. But Charlie actively caused the situation which would give him the opportunity to kill Bob "in self defense". Charlie even made a complex plan to arrange this situation and put serious effort into setting it in motion. It's premeditated murder. Your situation is basically the same. You caused someone to make an attempt at your life, and then killed them to "defend yourself". And you had plenty of other options: There are lots of ways to end your life without requiring the help of a hitman. By getting them involved, you incited them to commit murder (killing someone who wants to die is still murder under most circumstances). By hiring the hitman, you created two possible options: Either you kill the hitman, or the hitman kills you and they would be guilty of murder. Both are the direct consequences of your actions. You could have tried to cancel the hit when you changed your mind (if you tried and failed, that might give you a slightly better legal argument) You could have called the police and ask them for protection. Further, when you hired the hitman you committed a crime: incitement to commit murder. The fact that you were also the victim of that crime doesn't really matter. It also doesn't matter that you wanted to die: Assisted suicide is only permitted in very few jurisdictions, and those only allow it if performed by medical professionals under very narrow circumstances. Those circumstances would certainly not have applied, so the hitman would have been guilty of murder if he had succeeded (he is at least guilty of attempted murder, but you can't put a dead person on trial), so you would too. When you commit a crime and cause someone to die in the process, then that falls under the felony murder rule in many jurisdictions. You will likely be convicted of manslaughter or murder of the hitman, depending on when you decided to kill the hitman before they kill you. When you can convince the court that you did not premeditate to kill the hitman but only panicked in the last minute, and no felony murder rule applies, then you might get away with manslaughter. You might also be found guilty of incitement of attempted murder (your own murder). | Rules about self-defense in the US vary from state to state, but generally a person can raise a defense that they legally used deadly self-defense if they had a reasonable fear of death or grievous bodily harm, with some exceptions (exactly how these are worded changes from state to state): A person often cannot claim self defense if they are already committing a forcible felony (but it depends on the circumstances) A person cannot claim self defense if they are the aggressor in a fight or took aggressive actions toward another person who then attacked them. So, with that in mind, let's assume that Person A has a valid deadly self-defense claim against Person B. When considering self defense, the question is whether a reasonable person in the defendant's position would have feared death or grievous bodily harm. So, the exact sequence of events matters. Consider the following four scenarios: C watches B attack A and then A shoots B, C pulls out his gun and points it at A before A turns to him and points his gun in response C watches B attack A and then A shoots B, A then points his gun at C and C pulls out his gun in response C doesn't see B attack A and only sees A shoot B, C pulls out his gun and they stand off C doesn't see B attack A and only sees A shoot B, A then points his gun at C and C pulls his in response In some of these situations, A may be considered the aggressor against C even though he had a valid self-defense claim against B. In others, a jury may find that a reasonable person in C's position would not expect A to shoot them just because they shot an attacker, and therefore C is the aggressor by drawing on A. This all assumes a hypothetical where these people exist in a void, things like their relationship, the situation around the three subjects, and any other relevant facts could be introduced and considered in the analysis. In theory, a situation could exist where both sides have a valid self-defense claim against each other, the third example possibly being that situation. | 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). | You asked, "could that guy as defendant claim self defense and win?" First let's try to make it clear what is meant by "win". In the Rittenhouse trial, the defendant was charged of the following crimes: First-degree reckless homicide First-degree recklessly endangering safety (x2) First-degree intentional homicide Attempted first-degree intentional homicide Possession of a dangerous weapon by a person under 18 (dismissed) Failure to comply with an emergency order from state or local government (dismissed) Rather than thinking of the defendant as a "winner", it might be more appropriate to say that he was "acquitted" of these charges. If someone that was involved in the conflict fired first, as you described here: "They encounter each other when each is leaning or reaching or tripping, or whatever it would take for them to unintentionally point their gun at your head. You react and you raise your gun in defense, he spots your move and points his at you. You both fire. You shoot each other and you both are gravely injured. Like, paralyzed", then would they also be acquitted of all of the non-dismissed charges listed above? If everything was as you described ("unintentional", "reactionary", and "in defense"), then likely they would also not be found guilty of those crimes. It's not like they would "win", it's more like they will not be found guilty of committing one of those crimes. The precise outcome will depend on all the facts involved in the case, and the jury's decision based on those facts. So there is no single answer that always applies to every situation, but it sounds like you're wondering about some hypothetical situation that appears to be paradoxical because in this case only one person was charged with crimes: if someone else was the first shooter, the sequence of following events would first of all depend on whether or not they got charged with a crime, and I wouldn't characterize the outcome as a "win" or "lose" but as an "acquittal" or "conviction", and yes it is possible to be acquitted if everything is "accidental" as you described, and presumably not "reckless" (often meaning that a reasonable person in the same situation would have done the same thing). About your more broad question: "Is mutual self defense a thing?" It depends on what crime is being charged against the defendant. In the Rittenhouse case there was only one person that was charged. If you're asking about a hypothetical situation in which two people involved in a 1-on-1 conflict both claim self-defense, I hope I can assume that they were both charged with a crime against which to defend themselves in court in the first place. It is indeed possible for a State to prosecute both parties of a 1-on-1 physical conflict, and for both of them to successfully claim self-defense in order to eventually be both acquitted. It wouldn't be called "mutual self-defense", but each defendant would make their own self-defense case individually. | Engaging in unlawful conduct does not completely preclude a claim of self-defense under Wisconsin law ...but it does raise the bar in some circumstances: Criminal conduct by the defendant removes the presumption that "force was necessary to prevent imminent death or great bodily harm" when defending against unlawful forced entry to one's own property. A much higher burden on use of force is imposed if engaging in unlawful conduct that is "of a type likely to provoke others to attack him or her and thereby does provoke an attack." Anyone intentionally provoking an attack by any means, lawful or unlawful, "with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant," is not entitled to self-defense at all. Section 939.48 of Wisconsin law governs the standards for self-defense. 939.48(1) sets out the general standard: A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by such other person. The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference. The actor may not intentionally use force which is intended or likely to cause death or great bodily harm unless the actor reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. 939.48(1m)(ar) provides presumptions in favor of the defendant and no duty to retreat when defending against unlawful entry to one's own property (an implementation of the castle doctrine), but those presumptions are removed by 939.48(1m)(b)1. if (among other things), "[t]he actor was engaged in a criminal activity." More relevant to a case that occurred outside is 939.48(2), which lays out how provocation affects a claim of self-defense: (a) A person who engages in unlawful conduct of a type likely to provoke others to attack him or her and thereby does provoke an attack is not entitled to claim the privilege of self-defense against such attack, except when the attack which ensues is of a type causing the person engaging in the unlawful conduct to reasonably believe that he or she is in imminent danger of death or great bodily harm. In such a case, the person engaging in the unlawful conduct is privileged to act in self-defense, but the person is not privileged to resort to the use of force intended or likely to cause death to the person's assailant unless the person reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm at the hands of his or her assailant. (b) The privilege lost by provocation may be regained if the actor in good faith withdraws from the fight and gives adequate notice thereof to his or her assailant. (c) A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense. | Murder is one of the few cases where the intention and not just the act is relevant. The act – killing a person – is the same for Mord and Totschlag, whereas fahrlässige Tötung covers acts that have caused the death of a person. The language of the Stgb labels the perpetrator who killed someone as a murderer or manslaughterer depending on their intention. That a person and not an act is punished is often criticized, but it has no practical consequence. Clearly, the intention isn't that the second one is free. Courts are able to interpret the law reasonably. However, the distinction between two kinds of killings seems to have no basis in reality and robs courts from flexibility to find a just sentence. There are occasional attempts at reform, but none will be successful while CDU/CSU is part of the government. | A high profile example of modern seppuku was Yukio Mishima in 1970. His second failed to behead him and committed seppuku too, with both being beheaded by Hiroyasu Koga. A contemporary newspaper article (Sarasota Journal - Jan 6, 1971, "Suicidal Author in 'Hero' Status") noted that, in addition to being charged with crimes as a revolutionary, Koga was charged with "murder by request" (a.k.a. assisting suicide), along with two others present as accomplices. The crime against Koga is that of "murder by request" or "assisting suicide." And, according to precedent, those guilty of "murder by request" receive lighter sentences than those convicted of first-degree murder. Will Koga thus receive a lenient sentence because he merely assisted in another's suicide? Actually, all three survivors will be tried on the charge of "murder by request" on the assumption that all were accomplices to the series of criminal acts on the day of Mishima's death, which include assault, wounding several SDF officials, forcing officials to act, and unlawful incarceration. It seems the sentence was indeed light. Koga was sentenced to four years penal servitude, but was released a few months early for good behavior. As far as I can tell, there have not been any challenges to the law since. |
Why do we need lawyers in the Judicial system? Law is supposed to be known to all citizens. It is also assumed (implicitly) that it is correctly understood: Ignorance or misinterpretation is not an excuse before the judge. So why are we required to be represented by lawyers in criminal and civil trials? Why should a lawyer need to pass a bar exam before practising? In my country, like many others with a Spanish heritage, everything must be done through a lawyer. So you can't claim ignorance (as a defense). Also, you can't defend yourself by claiming you are a simple lay person (ignorant). That sounds a lot like hypocrisy. Why is the law supposed to be known and understood by everyone, when that is not the case? How can a legal system based on a false assumption do justice? I do not deny the advisability of having an attorney for legal matters. Personally, all my legal matters are handled by my family's attorney. | The law is known to everyone in theory. But as various people are said to have said, In theory, theory and practice are the same. In practice, they are not. Starting from zero and actually finding out what law is applicable to your circumstances is not a trivial matter. To have an answer you can rely on you need to do the following: Find out what law calls it. Sometimes this is obvious, but not always. Go and find the law in question. Over the last 10 years this has got much easier. It used to mean going to your city library and looking up the relevant law. These days we have Google (other search engines are available). Find any other laws which might have bearing on the matter. This can be a long way from obvious (see below). Find any relevant appeal court cases in which something like your circumstances have arisen, and figure out how they relate to your actual situation. You may find that some of the laws which you read in Stage 3 have been ruled unconstitutional, or that the standard of evidence required to prove or disprove something about it has been set impossibly high, or that the penalties or damages have been set absurdly high or absurdly low. If you are in the US then maybe some of those precedents were set in other circuits, in which case you need to figure out what your local circuit is likely to do about it should the occasion arise. Make a calm, dispassionate decision about what to do about your situation. Many people find this extremely difficult. The answer might be life-changing. Under these circumstances making a good decision is very hard. Just to give you an idea about (3), suppose you are planning on importing something for your business. Here is a list of areas of the law you might fall foul of, off the top of my head and I've probably missed some: Tax. Trade in endangered species. Drug prohibition. Environmental protection. Biosecurity. Health and safety. Consumer protection. And that is just the criminal laws. Theories of civil liability can get really complicated. But OK, lets suppose you figure out the law, but despite your best efforts you find yourself in court (criminal or civil). Now in addition to all the law you find yourself enmeshed in a complicated bureaucratic set of rules, depending on the type of court and where you are (e.g. US rules of civil procedure). At this point you need to learn not just the rules but how to play the game they describe. Think of it like playing chess; learning how the pieces move is only the first step on the long road to becoming a competent chess player. And the legal system is like chess in another way; there are no do-overs if you make the wrong move. (Incidentally, anyone who says "Well lets just get rid of all the complicated rules and laws" is committing the fallacy of Chesterton's Fence. Just because you can't see why the rules are there doesn't mean there isn't a good reason). Or you could just hire a lawyer. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | The purpose of the conflict of interest rules is to ensure that attorneys are acting in the interests of the clients they represent in that particular case and not their own interests, the interests of their friends or families, or the interests of their other clients. If a person is representing themselves, it is impossible for them to have a conflict of interest that would prevent them from serving their own interest because any such conflict could only change their interest. Say Alice wants to represent herself in a lawsuit against Bob and Bob hires Charlie to represent him. Even if Charlie is a close friend of Alice, that couldn't cause Alice to act against her own interests out of friendship to Charlie. Necessarily, she would only act in Charlie's interests if it was in her own interest to do so. So there simply cannot be a conflict that would prevent a person from acting in their own interest. They could only put someone else's interest above their own if it was in their own interest to do so, in which case it would not be putting anything above their own interest. | The prosecutor always has an advocate The prosecutor in a criminal matter is the State. Since the State is an artificial entity it has to act through agent(s) who advocate for it. In Commonwealth countries the State is synonymous with the Crown - I suppose HRH Queen Elizabeth II could prosecute every case personally but she’s a very old lady with a lot of other things to do (this is a joke - the person is not the office). | Barristers are advocates, and their other roles fall out of that core role. I think of it this way: your solicitor takes care of your legal risk; your barrister is the 'big gun' you bring in for specific important legal advice and to represent you in person. I'll give you my experience from the perspective of working in a large government agency. For us, 'barrister' often equates to 'Queen's Counsel' (now called 'Senior Counsel'), which is a particularly senior barrister. I am also speaking from Australia. We have the same split profession as the UK, but there are probably differences. You generally don't stop using a solicitor and start using a barrister. Rather, you have a solicitor the whole way through and then you engage a barrister through your solicitor. You can engage a barrister directly, e.g. if you have in-house counsel, but it is not common to do so. Even if you have in-house counsel, you will usually engage more specialised external solicitors to handle litigation. The barrister's role is generally to (1) provide advice on specific issues (after the solicitors have sifted the evidence and provided a brief to the barrister) including advising on your prospects in particular litigation and (2) represent you in court i.e. write submissions and speak to the court. It is not uncommon to have a barristers represent you in proceedings other than a trial (if you have the financial resources to afford a barrister). For example, a barrister may represent you in mediation or may accompany you to an examination by some regulatory authority. (Furthermore, a regulatory authority may even hire a barrister to question you, since barristers are often good at that based on their in-court role; or you and the party you are having a dispute with might appoint a barrister as the arbitrator or mediator.) You may have a barrister you prefer to use; more likely, however, your solicitor would know barristers and would recommend an appropriate one. Barristers are specialised so you would use a different barrister for a tax dispute, contractual dispute, employee dispute, etc. An organisation large enough to sustain constant legal disputes would have a number of barristers that it would go to as and when they were needed, on the basis of their particular skills and availability. There is no such thing as a firm of barristers. Each barrister is independent. A barrister's office will be in 'chambers', which is an organisation that leases office space and hires clerks to manage member barristers' business. But the barristers in a chambers are not in business together as members of a firm of solicitors are. Barristers are proud of their independence, and they all want to be appointed as judges so they have to appear impartial. To further illustrate how you might use a barrister: sometimes you get legal advice from a barrister and you cannot read the advice. You can see the words but it's gibberish. Your solicitor will interpret it for you. | This is not possible, simply as a matter of definitions and legal terminology. Someone who is "represented by one or more attorneys" is by definition not pro se which means representing yourself without an attorney. There are very rare instances in criminal trials involving serious consequences in which a pro se defendant is allowed to have an attorney advisor who does not represent them in court in an agency capacity, but, first, people who do that almost always lose and are almost always mentally ill (although not necessarily eligible for an insanity defense), and second, because courts generally don't allow this in any other circumstance (at least in court). The concept of getting advice from an attorney without having full fledged representation is called a "limited representation" and the law regarding limited representations more generally varies greatly from jurisdiction to jurisdiction and even between different courts in the same place. For example, Colorado's state courts and Colorado's federal courts have different rules for limited representations. | Finding Certainty There is only one way for certain: Do the supposedly unlawful thing Get sued (civil) or prosecuted (criminal) Go to court - if you win it wan't illegal If you lose, appeal to the next appellate court in the chain In one of those courts refuses to hear your appeal - it was illegal Repeat as necessary until you reach the Supreme Court - if you win it wan't illegal If you lose or the Supreme Court refuses to hear your appeal - it was illegal. Of course, this whole cycle will take a few years and quite a lot of money. Not certain but persuasive Consult a lawyer: their area of expertise is knowing what the law is and how it will likely apply to your circumstances. Of course, they can be wrong about this because - see above. Why is this so hard? Common law jurisdictions, of which Florida is an example, do not have a "Code of Laws" where you can look things up and see if they are legal or illegal. The Common Law in Florida is partially enacted law (by the US, Florida, County, City and finally your housing corporation) and partially unenacted law (decisions made by courts about both the enacted and unenacted law). In fact, enacted law is usually quite ambiguous until it has a body of unenacted (or case) law that surrounds it and provides guidance on how the courts will interpret it. Part of a lawyers skill is knowing (within their area of expertise) what the relevant case and statute law is with respect to the specific facts of the case, or knowing how to research them. Publish and be damned! You can always take the Duke of Wellingtons approach. In common law jurisdictions, everything is legal unless there is a law (enacted or unenacted) that makes it otherwise. If you do not believe that the action you wish to take is illegal then advise the other party that you will give them 24 hours to come back with a court injunction to prohibit it, otherwise you will proceed. You can't call a bluff harder than this! | Passing the bar exam allows one to get a license to practice law. It is to some extent like a certification exam. It is in all US states a crime to practice law without a license. Exactly how "practice law" is defined varies a bit, but holding yourself out as a lawyer, opening a law office, or taking money for representing people in court is petty much always included. Other related things are often included also. Even if one has passed law school and thus earned a law degree, it is a crime to practice law without a license, and one cannot obtain a license without passing the bar exam. In some states it is possible, but hard, to pass the bar without a law degree, in some a degree is required. so the main thing a law student cannot (legally) do that one who has passed the bar exam can is practice law. Legal Sources I found this definition of the practice of law on an official Maryland web page: The “practice of law” is defined in the Maryland Code as follows: (1) “Practice law” means to engage in any of the following activities: (1) (i) giving legal advice; (1) (ii) representing another person before a unit of the state > (1) > > > (1) (iii) performing any other service that the Court of Appeals defines as practicing law. (2) “Practice law” includes: (2) (i) advising in the administration of probate of estates of decedents in an orphans court of the state; (2) (ii) preparing an instrument that affects title to real estate; (2) (iii) preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; or (2) (iv) giving advice about a case that is or may be filed in a court Md. Code Ann. Bus. Occ. & Prof. § 10-101(h). The Court of Appeals has interpreted the practice of law to include “utilizing legal education, training, and experience [to apply] the special analysis of the profession to a client’s problem.” Kennedy v. Bar Ass’n of Montgomery County, Inc., 316 Md. 646, 662 (1989). In addition, meeting with potential clients may constitute the practice of law. Id. at 666. The practice of law is “ ‘a term of art connoting much more than merely working with legally related matters.’” Attorney Grievance Commission v. Shaw, 354 Md. 636, 649 (1999) (citations omitted). “ ‘Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer.” Id. Therefore, the Court of Appeals ruled that a bar applicant who had served as a hearing examiner for the Maryland Department of Employment & Training was not engaged in the practice of law, and therefore not eligible to take the attorney’s examination. In re Application of Mark W., 303 Md. 1, 4-6 (1985). “The hallmark of the practicing lawyer is responsibility to clients regarding their affairs, whether as advisor, advocate, negotiator, as intermediary between clients, or as evaluator by examining a client’s legal affairs.” In re Application of R.G.S., 312 Md. 626, 632 (1988). Also relevant is RULE 19-305.5. UNAUTHORIZED PRACTICE OF LAW; Law Students Under Supervision Some comment mentioned assistance in pro bono work by law students. I found Maryland Rule of Professional Conduct 19-220 - Legal Assistance by Law Students which provides in pertinant part, omitting the definitions of terms: (b) Eligibility. A law student enrolled in a clinical program or externship is eligible to engage in the practice of law as provided in this Rule if the student: (b) (1) is enrolled in a law school; (b) (2) has read and is familiar with the Maryland Attorneys' Rules of Professional Conduct and the relevant Maryland Rules of Procedure; and (b) (3) has been certified in accordance with section (c) of this Rule. (c) ... The certification shall state that the student is in good academic standing and has successfully completed legal studies in the law school amounting to the equivalent of at least one-third of the total credit hours required to complete the law school program. ... (d) Practice. In connection with a clinical program or externship, a law student for whom a certification is in effect may appear in any trial court or the Court of Special Appeals, or before any administrative agency, and may otherwise engage in the practice of law in Maryland, provided that the supervising attorney (1) is satisfied that the student is competent to perform the duties assigned, (2) assumes responsibility for the quality of the student's work, (3) directs and assists the student to the extent necessary, in the supervising attorney's professional judgment, to ensure that the student's participation is effective on behalf of the client the student represents, and (4) accompanies the student when the student appears in court or before an administrative agency. The law student shall neither ask for nor receive personal compensation of any kind for service rendered under this Rule, but may receive academic credit pursuant to the clinical program or externship. This page about the Univeristy of Maryland School of Law's public Servie program describes the program as: "one of the region’s largest public interest law firms" and states: Working alongside faculty, students provide 75,000 hours of free legal service annually to Maryland citizens in need[.] This is obviously a widely recognized and approved activity. |
Is it against the law for a GPS unit to alert a driver of a high crime area? GPS units will automatically alert you when you enter into a different speed zone, but they do not alert you when you enter into a high crime area. It seems that this would be valuable information to know when driving in unfamiliar places so you can quickly exit the high crime area, or map a new route that goes around it before you enter into it. From researching this today, I found out that crime mapping services currently exist because law enforcement agencies have been using Geographic Information Systems (GIS) to keep track of high crime areas for many years now. So, this made me wonder if there may be a legal reason why GPS units do not provide this kind of information to drivers. I did a few Google searches for a law that bars GPS manufacturers from providing crime mapping data to GPS units but I did not find any such law, yet I am still curious to know if such a law exists. Is it against the law for a GPS unit to alert a driver of a high crime area? | 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? | RCW 46.61.419 gives government police the right to enforce speeding violations as defined in RCW 46.61.400 in certain communities (condominiums and gated communities), per RCM 64.34, 64.32, or 64.38, if: (1) A majority of the homeowner's association's, association of apartment owners', or condominium association's board of directors votes to authorize the issuance of speeding infractions on its private roads, and declares a speed limit not lower than twenty miles per hour; (2) A written agreement regarding the speeding enforcement is signed by the homeowner's association, association of apartment owners, or condominium association president and the chief law enforcement official of the city or county within whose jurisdiction the private road is located; (3) The homeowner's association, association of apartment owners, or condominium association has provided written notice to all of the homeowners, apartment owners, or unit owners describing the new authority to issue speeding infractions; and (4) Signs have been posted declaring the speed limit at all vehicle entrances to the community. Thus there can be a speeding ticket. However, if you speed on my uncle's farm, that's just trespassing because that isn't one of the specified community types. The law only allows speeding enforcement by government law enforcement officers (not private security), and limits how low the maximum speed can be set. This raises an interesting question regarding speed enforcement on the Boeing bridge off S 104th in Seattle, which is private property and not part of a "community", yet quite urban and frequently used. | I assume you're talking about this case: Bus lane camera mistakes woman's sweater for number plate. No he couldn't just ignore it - because that doesn't actually result in it getting put in front of a human (judge or otherwise). Instead the fine would escalate and ultimately be passed to a collections agency. Only challenging the Penalty Charge Notice (as this person did) would get a human involved. As a bonus, if the automated fine happens to come with a S172 notice to identify the driver ignoring that is an offence in of itself (irrespective of the original alleged offence), and in many cases carries a worse penalty (£1000 and 6 points IIRC). what if this item of clothing became fashionable and was therefore causing this person to receive hundreds of these fines every week? While it's unlikely to get to that stage - the item of clothing on its own wouldn't do it, there needed to be a specific partial-obscurement of the garment as well, it's not impossible, after all perhaps it's their favorite sweater, they always carry their bag like that and cut across the bus lane on their way to work etc. In those circumstances there's nothing legally that changes, I'd expect the poor vehicle owner to be on first name terms with the people at the council enforcement call centre in question sooner rather than later. Re edit: Suppose I want to annoy somebody as much as possible, what's to stop me from printing a t-shirt with their actual number plate on it, then walking around past all sorts of cameras, knowing that they will receive multiple fines every day and have no choice but to keep calling and explaining. After all, the council has no duty to make it easy for someone to get through on the phone, so, potentially, I could walk around bus lanes and car parks all day. I could get some friends to do this all over the country in different local authority areas and the victim could - literally - have not enough hours in the day to have to keep fighting false fines. Would they not have some recourse to sue for harassment or "vexatious litigation"? In all honesty I don't know for sure what would happen in this scenario - I can't think of a similar enough case. But I would expect targeting an individual in this manner would qualify as harassment pretty easily and for which there are both criminal and civil actions that can be taken. I suppose hypothetically you could argue that the "number plate shirt" is effectively being used to make false allegations that the car's registered keeper had committed crimes, which opens up avenues to prosecution for Perverting the Course of Justice or wasting police time. But I have no idea how likely that would be to be pursued. | What is the correct way to handle this situation? Strictly speaking, each driver exceeding the speed limit is in violation of the traffic sign even if everybody else also infringes it. Thus it is completely valid for the police to pull & fine anyone from among those drivers. Statutes like the one you mention are intended for scenarios where a driver departs significantly --and for no apparent [lawful] reason-- from the speed limit, such as driving at 20 mph in a 55 mph zone. Typically a driver would not get pulled over in the scenario you mention (driving at 62 mph where everybody else drives at 65 mph). The exception would be some police department(s) requiring its cops to meet a quota of fines per week, but that would be quite a questionable practice having nothing to do with the legislative intent. Speed limits are supposed to represent normal and reasonable movement of traffic. If informed consensus is that a particular speed limit is inconsistent with that principle (for instance, where limit is artificially low and raising it would not compromise safety), then a request could be submitted to the Oregon Department of Transportation. | Is this legal for the county to enforce? Yes. And can I sue if they try to enforce it? You could, but you would very likely lose your lawsuit. A more fruitful approach would be to go to the county planning board and seek a variance to permit you to do what you want to do. | You have an agreement with the store that allows you to use scan and go technology. Part of that agreement a bit that says we may ask you to help us confirm that the service is working effectively by allowing us to check your goods against the scanner or to re-scan your shopping They also say that they are entitled to withdraw your right to use the Scan and Go service at any time if you do not comply with these Terms and Conditions. If we do that, the legal agreement created between ASDA and you under these Terms and Conditions will come to an end immediately, although any relevant statutory rights that you may have will not be affected. More generally, ASDA reserves the right to withdraw the Scan and Go Service at any time, at its sole discretion You have implicitly consented to a brief stop for a rescan. I don't see any implication that they assert a right to search your person. You can refuse a re-scan and they can process you like an ordinary customer. As for shoplifting, as this article summarizes, security can make a citizen's arrest if they suspect that you have committed a crime (theft). They have to have reasonable grounds for thinking that an arrest is necessary to prevent the loss. Hence they can detain you until the constable arrives. | It's legal The Ohio Court of Appeals has addressed a nearly identical situation in State v. Paseka. The relevant law is, as you noted in the question, R.C. 4511.39, which states, in relevant part: No person shall turn a vehicle or trackless trolley or move right or left upon a highway ... without giving an appropriate signal The facts in this case are directly on point—an intersection where continuing straight puts one on a different road, while the original road requires a turn to stay on it: Appellant was traveling west on State Route 6. At a certain point, Route 6 veers to the left. As appellant approached that area of State Route 6, he chose to maintain a straight-ahead course which automatically placed him on Wahl Road. He was stopped for failing to activate his turn signal in violation of R.C. 4511.39. The court ruled that this did not violate the law requiring the use of a turn signal: It is undisputed that appellant’s straight-ahead entrance onto Wahl Road did not require him to turn his vehicle, nor did it require him to switch into a different lane. As such, we fail to see how appellant violated R.C. 4511.39. Here's the intersection in question, via Google Maps: Imagery ©2021 Google, Imagery ©2021 Maxar Technologies, State of Ohio / OSIP, USDA Farm Service Agency, Map data ©2021 | Different states vary on all of this stuff but many times the roadside breathalyzer is given to establish probable cause to arrest a driver. After that the driver is given another test on a computer-connected breath tester at the station (or wherever). It's these big testers that are usually used as the evidence and are the ones which are at the center of controversy in various states. As @Dale M stated, for roadside tests the officer can write the results in a notebook, some breathalyzers have printers, and other are connected to a computer. Whatever the case, there is usually a process that officers go through to ensure this stuff is accurate and complete. A lot of it is departmental policy and would only be revealed if challenged in court or perhaps via an open data request. But again, this record is to show probable cause for the arrest and the trip to the bigger badder test which is fully computerized and documented and witnessed. (In at least one state (NC) you have the right to have a witness present when you are tested.) EDIT: Oh, and if your plan is to challenge probable cause because the record-keeping on the roadside breathalyzer is mediocre, the cop can cite all sorts of other probable cause, like he saw you swerving, you were slurring your speech, he smelled alcohol, you failed the in-car test, and you failed the roadside walking, touching, dancing, singing test. |
In Washington state must a doctor report things that happened in the past? Are Washington state's mandated reporting requirements triggered if a doctor discovers that their adult patient had been abused in the past? What if there are no longer any 'protected populations' at risk (no children, no vulnerable adults/elderly,...)? What if the patient talks exclusively in hypothetical terms? | RCW Chapter 26.44 covers abuse of children, and RCW 26.44.030 1(a) states the duty to report: the reporter "has reasonable cause to believe that a child has suffered abuse or neglect" – the law doesn't say "a child is currently suffering abuse", it say "has suffered". But then: subsection (2) says: The reporting requirement of subsection (1) of this section does not apply to the discovery of abuse or neglect that occurred during childhood if it is discovered after the child has become an adult. However, if there is reasonable cause to believe other children are or may be at risk of abuse or neglect by the accused, the reporting requirement of subsection (1) of this section does apply. So, no, unless it is reasonable to believe that the abuse is ongoing, in which case, yes. It's not really possible to judge the status of a "hypothetical", because some hypotheticals are hypotheticals, and others are real, so it would depend on the totality of evidence that would support that conclusion. | The rule applies to "A covered entity or business associate", who may not "use or disclose protected health information" except as permitted. The set of covered entities and business associates is pretty large, and certainly covers nurses, also secretaries working for the hospital or insurance company. It is not restricted to the doctor-patient relationship. However, the restriction is not absolute: a patient can consent to the disclosure of such information: but, the consent must be written. This raises an interpretive challenge, in case patient A reveals a medical fact to a friend B who happens to be a medical professional. Person B probably is a "covered entity", since they are undoubtedly A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter. The information also is "protected": Protected health information means individually identifiable health information: (1) Except as provided in paragraph (2) of this definition, that is: (i) Transmitted by electronic media; (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium. (2) Protected health information excludes individually identifiable health information: (i) In education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g; (ii) In records described at 20 U.S.C. 1232g(a)(4)(B)(iv); (iii) In employment records held by a covered entity in its role as employer; and (iv) Regarding a person who has been deceased for more than 50 years. Para 5 on prohibited uses and disclosures explicitly lists the prohibited disclosures (genetic information for insurance underwriting, sale of PHI), so idle gossip is not explicitly prohibited. It is also not explicitly allowed. But again, the regulation says: may not use or disclose protected health information, except as permitted or required by this subpart Nothing in the rules limits the obligation of a "covered entity", in terms of how they came to be in possession of PHI. Given the definition of "covered entity", the fact of being a covered entity is a property does not depend on obtaining information electronically. So without written consent, B who is a covered entity cannot gossip about A's medical status. | Chain of custody and testimony in this regard. Say there is a murder victim, with DNA of the suspect under the fingernails and a knife with the suspect's bloody fingerprints stuck in the chest. There would be testimony what happened to the knife. If a paramedic removed it to attempt first aid, the paramedic would testify. So would the officer who bagged it, and the forensic analyst who took the fingerprints. A pathologist would testify if the knife was consistent with the stab wound (a careful pathologist could never swear that the knife was the cause of death, just that it matches). The pathologist would also testify how DNA was collected under the fingernails, and how it was sent to the lab. The defense may claim that the suspect also tried first aid, or that a corrupt cop forced the suspect to hold the knife. The court or jury then draw their conclusions from this and other testimony. Same here. A lifelike picture found on the web proves nothing. A witness who takes the stand to testify that he or she took a certain picture would be more credible. So would a forensic officer who testifies how she or he removed the data from a surveillance camera, checked for common signs of tampering, and then signed a copy of the data with a private key. (The signing shows no third-party tampering after collection, it is not evidence of integrity before that.) Years ago, in germany, there was the case of a bank robber who claimed that a fleeing suspect had handed him a bag of money in the forest and then vanished. "Prove it wasn't so," he demanded. "You can't. So there is reasonable doubt." Well, the court found that the statement merely created unreasonable doubt, and the sentence was upheld on appeal. | There aren't any specific laws or regulations about medical charges. Instead, this is a matter of general contract law, where you have to agree. You have to consent to be treated, and a signature is taken to be evidence of consent. The law does not say that they have to ask permission for absolutely everything they do, the action just as to be in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained This law insulates doctors from getting sued. In a situation where treatment is provided against a patient's instructions, you may have a cause of action for e.g. battery. In general, a doctor can't poke you, draw blood, make "offensive contact" etc. without consent, and consenting to one procedure does not "open the floodgates" of consent for any othre procedure. Of course, if the procedure was not performed, you obviously are not liable for the cost (and they are not liable for a non-occurring battery). This may in fact constitute gross negligence. During trial, the primary issue is likely to be whether there is proof that the procedure was expressly rejected. The doctor would probably provide the consent form, and that form may or may not indicate that the test would be conducted. It would not be surprising if the patient never saw an actual form and instead just electro-signed, having been told that this is authorization to treat. Corroborating witnesses would be helpful. From a practical perspective, especially if the billing department is being recalcitrant, this is probably a matter best handled by an attorney who would start with a formal letter summarizing the consequences of unauthorized medical treatment. | united-states Is a personal text (like a diary), submitted without the consent of the author, admissible evidence? Usually, it is admissible evidence. There is no legal right to keep your diary private. Production of a diary may be compelled by subpoena and admitted into evidence subject only to general considerations regarding whether particular entries in the diary are inadmissible for some other reason (e.g. lack of relevance, they recite the contents of an otherwise privileged discussion, they contain hearsay, they recite the terms of a settlement offer, the recite inadmissible prior act evidence, etc.). If the diary revealed information that could place the diarist at risk of criminal prosecution, the 5th Amendment privilege against self-incrimination could arguably be claimed even in a civil case, but at the risk of an adverse inference to be drawn from that decision in civil matters. I haven't ever seen how that issue is resolved legally. | The courts of Washington will not apply the law of Tennessee in an action somehow involving something about Tennessee, they will apply the laws of Washington. If neither end of the conversation is in an all-party state, no party has standing to sue under the laws of some other state. If a person in Idaho calls a person in Oregon and the call is routed through Washington state, neither party can sue under Washington law. In all 50 states, there is an "exception" to the consent requirement when the "interception" is due to routing / switching, otherwise it would be illegal to call from house to house if you don't have a single wire between the houses (never the case). No state has a law that imposes two-party state law in calls that pass through a two-party state. The federal wiretapping law say you may not intercept any wire, oral, or electronic communications without consent, then sets up the definitions to encode the exceptions. For example, "aural transfer" is a transfer containing the human voice at any point between and including the point of origin and the point of reception (anticipating the need for connections), and "intercept" means "acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device" (a hearing aid is a device). But then "electronic, mechanical, or other device" is further defined to exclude a hearing aid, or also they exclude any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; or (ii) being used by a provider of wire or electronic communication service in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties which is a good thing since the telephone is a device, and the switching system is a system used to make a phone call possible, but it intercepts under the ordinary meaning of intercept. Intercept has a specific, narrow meaning. The law of Florida is very similar | Its worth actually reading through the law again - they're meant for different categories of drugs - and its worth looking up the relevant laws as a whole. You can't cherrypick which law you charge them under in this case. It depends on what the suspect has in posession, and if you have more serious charges, they're probably going to be preferred unless the prosecution decides to throw the entire library at the suspect and charge them with everything they can, or a larger subset. A quick search on the internet - which shouldn't be taken as legal advice, brings up this link. Category 1 drugs are addictive and seen as therapeutically useless - you shouldn't have any realistic reason to have quantities of it in your posession. Category 3 is drugs with therapeutic use - stuff like codine. You could get a prescription for that, but there's potential for abuse. They're aimed at different classes of drugs - and the confusion is over a misinterpretation of what the law is about. As an aside, this is why you need to usually read more than just a specific statute or law to get what its about. | Different kinds of court records are subject to different rules, but generally speaking, the public has a right to access the complaint in a civil case, derived from both the First Amendment and common law. Under common law, the Court should only block public access if it determines that some interest in secrecy outweighs the interests promoted by the general policy of openness, which include the promotion of actual fairness and the appearance of fairness, community therapeutic value, and facilitating news coverage of the case. Even if you can get the records sealed under the common law test, you still need to pass the First Amendment test, which asks whether there is a compelling governmental interest in limiting access to the record and whether sealing it is the least restrictive way of achieving that interest. The answer to both questions is usually no. In applying those tests, HIPAA neither requires nor permits courts to make exceptions to the public's right to access court records. Its privacy rules only govern protected health information in the possession of medical providers, insurers, etc. This means that filing a medical malpractice case will almost certainly result in the facts underlying that case becoming part of the public record. One could petition the court to seal portions of the record if they were particularly sensitive, but the court is basically required to do whatever it can to avoid granting that motion. |
Great Seal of The United States Non-Commercial Is okay to use the Great Seal of The United States for Non-Commercial use? | The various seals of the United States Government aren't governed by copyright but by 18 U.S. Code § 713. Section a covers the great seal of the United States (emphasis mine): Whoever knowingly displays any printed or other likeness of the great seal of the United States, or of the seals of the President or the Vice President of the United States, or the seal of the United States Senate, or the seal of the United States House of Representatives, or the seal of the United States Congress, or any facsimile thereof, in, or in connection with, any advertisement, poster, circular, book, pamphlet, or other publication, public meeting, play, motion picture, telecast, or other production, or on any building, monument, or stationery, 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, shall be fined under this title or imprisoned not more than six months, or both. Based on a plain reading of the law, it would seem that you are allowed to reproduce the seal so long as you do not do it in such a way that would convey approval by the government to do so. If you actually intend to do this, you may consider checking with a competent attorney to make sure your use does not "convey a false impression of sponsorship." Note that this only applies to the great seal, the rest of the section covers the seals of the President, Vice President and the houses of Congress and specifically requires approval by an appropriate entity before reproduction of those seals, depending on the context. | This sounds like legal nominative use to me. The issue is trademark. Trademark law isn't a monopoly on using the trademark, it is a prohibition on using the trademark in a way that misleads a customer about who is selling something or what is being sold. You cannot sell goods in a manner that implies inaccurately an affiliation or endorsement of a trademark owner, causing confusion in the mind of a reasonable consumer. But, it sounds like your disclosure makes a factually accurate statement without implying or stating that the goods are sold with the affiliation or endorsement of Kodak, only that you used their goods as parts in your product. To be safe, in order to be completely clear and avoid all doubt, you might want to say, in addition, "This produce is not licensed or authorized by Kodak." The First Sale rule expressly protects your right to resell physical good protected by trademark or copyright to someone else, so the sale itself is not illegal, it is just a question of whether you have abridged its trademark. Conceptually, what you are doing isn't that different from stating that the used car you are selling had all replacement parts obtained to maintain and repair it done with dealer approved parts, rather than third-party knock offs, which would likewise be legal. Similarly, you could sell a house with a listing that identifies the brand of every building material used. For example, "this house was constructed using Pella Windows." | 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. | Trademarks apply only to a limited field. If you follow the link, it reports that it applies to class 42, graphic art design. So you are free to use (and register "mama" for your food delivery service, for example. | First, the press release is copyrighted from its inception and may have been work for hire (a close call since you wrote them for an LLC and the LLC had a deal with them). There is a copyright in someone, although the absence of a copyright notice limits the remedies available for infringement. Second, a link is not a copyright violation. Third, copyright protects an exact manifestation of an idea or description of a fact, not the idea or fact itself. Fourth, there are two different doctrines that could protect an exact copy of a press release. One of two doctrines, which applies if the press release has been released to the public, is an implied license. Press releases are meant for the general public and reprinting them when that is their intended purpose is an implied grant of permission. In the same way, if you have an unfenced front yard to a concrete path leading to your front door, anyone who wishes to meet with you has an implied license to walk up to your door and knock. Whether this implied license can be revoked or not is a harder question. The other of the two doctrines, which is not limited to press releases that have been released, is "fair use". In this situation, when the work was short, has been released to others, has limited literary value, transmits unprotected facts relevant to you, relates facts that may also be a matter of public record (the sale anyway), and you aren't trying to profit from the text of the press releases themselves just from the facts that they convey, the case for fair use is pretty decent even though this is a business use. Ultimately, however, to be squeaky clean and avoid litigation, you can link rather than regurgitate the press releases, and can write your own statements about the facts in them from scratch. This information is not privileged or trademarked. If you didn't sign a non-disclosure agreement (NDA) or if they were released to the public, they aren't subject to trade secret protection either. If they were only released to the customer whose sale was involved and there is an NDA they could conceivably be trade secrets but even then the case would be very weak since the information doesn't create value by virtue of being kept secret. | Yes you can. The pieces of information you are going to include are facts. Facts are not copyrightable. The names will be trademarks but you will not be pretending to have any connection with them, so just using them for reference is fine. | In the US, trademarks do not need to be registered. The owner of the mark can sue in state court for infringement of the trademark without ever registering. However, there is increased protection and specific benefits to registration. The US Patent and Trademark office (USPTP) PDF publication Basic facts About Trademarks says (on pages 10-11): In the United States, parties are not required to register their marks to obtain protectable rights. You can establish “common law” rights in a mark based solely on use of the mark in Principal Register provides a number of significant advantages over common law rights alone, including: • A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration (whereas a state registration only provides rights within the borders of that one state, and common law rights exist only for the specific area where the mark is used); • Public notice of your claim of ownership of the mark; • Listing in the USPTO’s online databases; • The ability to record the U.S. registration with U.S. Customs and Border Protection to prevent importation of infringing foreign goods; • The right to use the federal registration symbol “®”; • The ability to bring an action concerning the mark in federal court; and *The use of the U.S. registration as a basis to obtain registration in foreign countries. The USPTO is supported in part by fees from trademark applications, and obviously wants to promote registration. Registration involves fees, and time and expense in preparing the application. It often involves the services of a trademark lawyer. Many businesses find nit worthwhile. Whether it is a good idea for a particular business is an individual, fact-based, business decision, and I cannot advise on it. | A "similar brand", even a "knock off", does not infringe trademark protection (which is the issue here, not copyright) as long as reasonable consumers or purchasers will not be confused or mislead into thinking that the product is the same as the original product, or is made by, affiliated with, sponsored by, or authorized by the makers of the original product, or that the knockoff in some way shares the reputation of the original product. Obviously that is a fact-based judgement, but a name that alludes to another product but is obviously different is generally not considered an infringement. (I recall reading of a case in which the well-known "North Face" clothing brand tried to sue a new brad called "South butt". I believe that North Face lost. Apparently I was wrong and the case was settled.) |
"Evading" police car (with lights on) before it turns around to follow you Say you're excessively speeding down a divided highway when a police cruiser passes you on the other side of the median and flips on the lights and sirens. Now of course you assume this is a result of your speeding but of course you can't be sure they could be trying to get to another scene down the road. So now you realize if the cop is coming for you it will take a full 30 seconds to get to the nearest turn around and back to you, it will also for whatever brief margin put you out of view. Would it be illegal to then pull off and park behind a building in a fairly obvious attempt to hide from the police? What if in a less obvious way you just turn down a side road and keep heading that way would that be evading the officer? | This varies from state to state. Here's a representative statute: Any driver or operator of a motor vehicle who, having been given a visual or audible signal by a peace officer directing such driver or operator to bring his vehicle to a stop, willfully fails or refuses to obey such direction, increases his speed, extinguishes his lights, or otherwise flees or attempts to elude the officer. See 625 ILCS 5/11-204. For a first offense, IL calls it a class A misdemeanor punishable by up to 1 year and $2.5K. but on the third offense it becomes a felony punishable by up to 3 years and a $25K fine. If the signal was meant for you, then the divided highway is a moot point so long as you realize it was for you (which might be established by you turning off the road into some neighborhood where you have no business). united-statesillinois | 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. | You broke so many rules At “T” intersections without “STOP” or “YIELD” signs, yield to traffic and pedestrians on the through road. They have the right-of-way. When you turn left, give the right-of-way to all vehicles approaching that are close enough to be dangerous. If you have parked on the side of the road or are leaving a parking lot, etc., yield to traffic before reentering the road. But there was no collision so, no harm, no foul. | The basic reason to avoid speaking to police is the concern that something that you say will provide the police with a basis for arresting you or someone you care about, or charging you or someone you care about with a crime. Often, the reason that the police are talking with someone is specifically for the purpose of developing probable cause or a case to convict someone of a crime, when without your information they wouldn't have that information. Statements far short of a confession to committing a crime can be critical lynch pins in establishing a case against you. For example, a statement that confirms that you were in a particular place at a particular time could link you to a crime that happened at or near that location at that time, when otherwise the police might have no idea where you were at that time and might never link you to the crime. Also, it isn't uncommon for a request for police assistance to end badly, with the police assistance being deployed against you, or the means used by the police to resolve a situation having a deadly or undesired outcome. On the other hand, often you will need to communicate with police. You may need to report a crime for insurance purposes. You may need help when you or someone around you is currently being victimized by someone committing a crime. Cooperating with police to provide information may help to remove someone who is a potential threat to you or someone you care about from the streets. A better rule than "never talk to the police" is really more along the lines of "think twice before talking to the police". You should thoughtfully evaluate if what you hope to gain from doing so is greater than the risk that a case against you as a suspect could be established and is also greater than the risk that if the police do respond when you communicate with them that the situation could end badly. As you do this, try to see yourself from a police officer's perspective. How will you look? Also, are you capable of saying what needs to be said and then stopping, rather than blabbering on out of nervousness. A related notion is that you should be much more wary about talking to the police when the police initiate the conversation than you are when you are the one initiating the conversation. This is because ulterior motives on the part of police that could harm you or people you care about are much more likely when the police initiate the conversation than when you do. Yet another consideration is how much you understand about the situation you are in, how sophisticated you are in dealing with the police, and how glib you are compared to the average person. For example, there are people who a guilty of a crime and are in a situation that they understand well where they are at high risk of being implicated in a crime, where smooth talking can deflect police attention away from you and onto another person or a non-existent suspect. But, not many people are smooth enough and understand their circumstances well enough to pull that off. In general, the more that you fit "the profile" of someone the police are likely to suspect of a crime (e.g. if you are a young adult African American man in a "high crime neighborhood"), the more you should assume that responding to a police inquiry directed to you is a bad idea. | The only specific prohibition of "backing" is at s. 157 of the Highway Traffic Act: 157 (1) No driver of a vehicle shall back the vehicle upon the roadway or shoulder of any highway divided by a median strip1 on which the speed limit is in excess of 80 kilometres per hour ... However, there is a careless driving prohibition: 130 (1) Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway. And there is the Criminal Code's dangerous driving offence: 320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public. It would be misleading to say that it is absolutely "legal" or "allowed" to "drive in reverse on a non-divided road that has a speed limit of more than 80 km/h". It just isn't prohibited by s. 157(1) of the Highway Traffic Act. 1. Note that "divided" in the question was just a paraphrase of "divided by a median strip." There are many sections of road in Ontario that are not divided in that sense, with speed limits above 80 km/h, including much of the trans-Canada highway. | Let's be quite brutal here. Inexperienced driver doesn't mean the driver made a mistake. Lots of friends in the car doesn't mean they interferred with his driving. Loud music in the car is totally legal. "Perhaps was distracted" - "perhaps" you were distracted by looking at the passengers of this car instead of yielding? It seems that you drove without due attention. You noticed at the last moment that you had to yield. "Yielding" isn't just stopping right at the last second, you have to drive in a way that it is visible for others that you are going to yield, and you didn't. The other driver was 100% correct to assume that you wouldn't yield. Then you come up with an accusation that a police officer was biased. That's a very, very strong accusation. It's impossible for you to prove. It's the kind of accusation that will cause the judge to believe that you can't accept your own faults, and that you need the maximum possible fine to make you realise your mistakes. That's why you need a lawyer. A lawyer will either make sure that you only say things in court that actually help your case. Or will advise you not to fight this in court at all, if that is better for you. If you go to court on your own, you'll only get yourself into trouble. And if there was bias by a police officer, and a witness lying, and a driver driving without attention, then a lawyer with experience in these things might be able to prove that it court, although that would be a very tough call, but you on your own don't have a chance in hell. You say "the shop owner lied". The shop owner says "no, I didn't". So what's your next step? You don't know. Your lawyer knows. That's why you need a lawyer. | I'm assuming you are talking about something like this You didn't specify where you live, but in many places it is illegal to block the sidewalk with a car. I just looked up my local ordinances and it is there. In fact, it is your driveway, but often the land up to and including the sidewalk is considered part of a public easement. Typically you are required by law to maintain any grass in the easement, but if the sidewalk were to fall into disrepair, the local government would fix it. Information on easements can also be found in your local ordinances, here is an example in my area. Should I fight this ticket? You can try, but I doubt you will win. Is there anything I can do to my driveway to allow me to actually use it? I would suggest asking on Lifehacks. And post a link here to your question if you do, I'd be curious to know what they come up with. | The fire department is entirely within its rights, which are the same as any other property owner. The fact that property is owned by a governmental body does not mean that members of the public can't be excluded that property. Some governmental property is public, but lots of it is private, and this would usually include most parts of fire department property. As long as you have not been denied any access to a public road by this fence, there is nothing improper about it. Anyone can walk through their parking lot, park their car there, meet friends, whatever, This is almost surely inaccurate. The fire department does not have to allow members of the public to have any access to their property and probably would demand that most of the uses you describe stop if they interfered in any way with the performance of its duties. |
Is it unethical for a prosecutor not to try his hardest to get an indictment? A Grand Jury failed to indict Darren Wilson, the police officer who shot Michael Brown, which led to riots in Ferguson, MO. This my have been due in part to the fact that the prosecutor presented the Grand Jury with all the evidence rather than just presenting the evidence that bolsters his case for indictment. In this article, Megan Mcardle argues that the prosecutor was in a no-win situation, since he was under political pressure to convene a grand jury, and yet he didn't think that a conviction would be likely. So he intentionally tried not to get an indictment in order to avoid the case going to trial. But my question is, is it unethical for a prosecutor not to try his hardest to get an indictment after he's convened a Grand Jury? Could a prosecutor be disbarred if it's found that he presented evidence which he knew would undermine his case for an indictment? Would such behavior run afoul of government rules of conduct for prosecutors? | On the contrary, it is unethical for a prosecutor to bring a case where there is no reasonable prospect of conviction. The prosecutor is an officer of the court and as a representative of the state, their primary concern is the guilty are convicted and the not guilty are not. | There actually is a practical effect to a "not proven" v. "not guilty" verdict in Scotland, but it is mostly sociological or social in nature rather than legal. If your question is, are there future legal concerns, than no. Not proven is, to be sure, an acquittal. However, it is an acquittal that the tells the public something important: that the trier(s) of fact thought the person likely guilty. That's a fairly substantial distinction. In Scotland, a criminal case may be decided either "in solemn procedure", which is simply the Scot term for a jury trial v. "in summary" or in "summary procedure" which is the U.S. equivalent of a bench trial. The difference between the two (and the divergence from the U.S. procedural vehicle) is that for lesser crimes the accused doesn't have an automatic right of a jury trial for any criminal matter. In some ways this lesser included makes up for the fact that the Scottish accused is without absolute right to choose jury or bench trial, which in the U.S. can be very meaningful from a tactical perspective. Think of how important the make-up and emotional proclivities of juries are to both convictions and acquittals. A bench trial can be beneficial to the truly unlikable defendant, or in especially brutal crimes, where juries may convict out of fear or sympathy for the victim, even if the case is weak. At the same time, they may nullify the conviction for the sympathetic defendant. Juries are notoriously emotional and bias driven. Being able to choose a bench trial where the judge will follow the evidence and avoid the emotional response of a jury can be invaluable. Just as a sympathetic defendant can appeal to the emotions of the jury for acquittal or jury nullification, on the opposite spectrum. In Scotland, lesser crimes are always (with limited exclusions) tried by a judge, while more serious allegations always (again w/ limited exclusions) get a jury trial, automatically. The defendant does not choose the type of trial he is afforded. Hence, a defense or a prosecution cannot fiddle with the balance of proof based on emotion or lack there of. They get what they get. There are various rules procedurally that differ in comparison, but since this isn't the question that is the general rule and should suffice for background. Also hugely important is the fact that in Scotland, jurors decide a case by majority vote (like a civil trial in the U.S.); hence, there are no hung juries and they don't need a consensus. So, one way or another the verdict will be given in a Scottish criminal action. Scots also get comparatively huge juries to any other country (15 jurors) and they only need 8 in agreement to reach a verdict. Tactically, the "not proven" is a lesser included verdict (like U.S. uses lesser included charges in cases that are weaker for the prosecution). This lesser included finding can be used by choice when the Prosecution has a sympathetic defendant or when the defendant is probably guilty or unlikable. If the jury thinks the defendant (called "accused") probably did the crime, but the prosecution has failed to prove the elements, they can/will issue a "not proven" verdict. This sends a big message. This, again, is typically only reserved for those cases when there is strong but not conclusive proof that someone committed a crime. They don't want to profess their innocence with a not guilty verdict, so they are still acquitted, but with he stigma of the "not proven" verdict attached. Some estimates have from 1/5 to a full 1/3 of all acquittal verdicts by Scottish juries as "not proven" as opposed to "not guilty". Not proven can also be used by judges in the bench trial (summary procedure), however it's much less common. The proportion of 'not proven" acquittals in general is higher in the more severe cases; but so then are the proportion of acquittals versus convictions. These would likely be hung juries in the U.S.. Both in the "solemn" and the "summary" acquittals, not proven is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally or even factually convinced that the accused is guilty, but do not find the proofs sufficient for a conviction under the elements of the crime on the jury instruction/verdict form. I look at this as similar to the adage oft used in the U.S., which is an acquittal, despite the fact that the verdict is termed "not guilty" does by no means indicate the person is in fact "not guilty", it just means the prosecution couldn't prove its case. Sociologists in the U.S., as well as legal scholars, have studied the phenomenon, and it appears that most not guilty verdicts in fact let go a guilty person. This can be intuited by the evidence the jury never saw, either by suppression from bad searches, by the exclusion of witness testimony due to procedural rules like hearsay, privilege, etc., and other forms of keeping relevant evidence from the jury to protect the rights of the accused. But in the U.S. the person can go forth and say, "Hey, I was proven not guilty!" Scotland also has another interesting rule of criminal procedure, whereby a criminal can't be convicted without corroborated evidence. What this means is that if all the prosecution has is the victim witness, by way of proof, testifying, and no physical or corroboration testimony, Scottish law requires acquittal, but often will be so by the verdict "not proven". This is huge, if you think about it. Use, for example, a rape trial. A woman testifies, saying that Joe Schmoe climbed through her window and raped her. She knows Joe - he's her neighbor. Nobody saw him climb in. But she knows it's him. He leaves no physical evidence, having shaved his entire body and used appropriate protection (gloves, condemn, etc.). She has a rape kit done. Rape is obvious, but the only proof is her testimony. Joe goes free. But in Scotland, he goes free with a stigma attached. He's found "not proven" rather than "not guilty". I think this corroboration rule has a lot to do with why this verdict system still exists. In the U.S. the trier of fact would weigh the testimony and decide if one person was substantially more believable than the other, and a verdict would issue. That is a substantial difference, procedurally. Since Scotland doesn't have the hung jury because there is no consensus required they use the "not proven" in the same way a U.S. jury uses the hung jury when one or more jurors thinks the prosecution didn't prove their case but it's fairly clear the defendant is, in fact guilty. Then, you will often get a "hold out" juror, and since the U.S. requires a unanimous verdict, the hold out hangs the jury. It's sort of the opposite of jury nullification. The person knows that the evidence fell short, but their conscience can't reconcile letting the person go free, so they will vote guilty to hang the jury, almost ensuring the prosecution gets another shot. There has been a lot of debate about this three verdict system in comparative law circles, with many legal scholars saying it's antiquated. But I think it serves an important purpose. It carries the stigma of likely guilt for those people who probably committed the crime but got off. Further, the hung jury cost tax payers millions of dollars in the U.S., and this is often the side effect of people not wanting there to be absolutely no recognition of the fact that the accused probably committed (especially serious) crime(s). The Scots, on the other hand, have found away to accomplish this without the cost and emotional toll multiple trials takes on all the players involved, from witnesses and victims, their families, the accused, and even the lawyers and the prosecutions, who have to put in all the work of a trial just to start anew. Here is a really good scholarly article that deals with this interesting phenomenon not seen in (I don't believe) any other country: https://journals.iupui.edu/index.php/iiclr/article/viewFile/17848/18019 | No, a later trial is not allowed A prosecutor can, and often will charge multiple related crimes, and all will be addressed at the same trial. But once a person has been acquitted on a given set of events, the same jurisdiction cannot re-try the same person on what is often called a lesser included offense. Nor on a greater offense implied by the same events. Not even if additional evidence comes to light. However, if an act (or set of acts) is a crime under both state law and Federal law, for example theft by deception (state crime) and wire fraud (federal crime) one jurisdiction may try the person even after ther has been an acquittal in the other. I think the same rule applies if an act is a crime within the jurisdiction of two different states, that both can trey the accused. In many cases prosecutors will choose not to bring the second trial, but they can if they see fit. | In a normal case, it is not merely the contents of the indictment that are secret, but also the very fact that an indictment exists. This level of secrecy surrounding grand jury proceedings is a practice so old that it may be impossible to say with any certainty why it began, but it is currently justified on various grounds. For instance: It reduces the danger of reputational harm to suspects who the grand jury believes have not committed any crime. It reduces the danger of witness tampering. It reduces the danger of defendants taking additional steps to avoid detection. It reduces the danger of defendants fleeing upon learning that they've been indicted. Naturally, the importance of any of these considerations will vary from case to case. So, had the process gone normally, the public would not be curious about the Trump indictment because it wouldn't even know the Trump indictment existed. But media leaks put the court in an awkward position, as the court was still legally obligated to pretend it didn't even know whether an indictment existed, even though the defendant had been blabbing about it for days on social media. | Traditionally, anyone could bring a bill of indictment to a grand jury. This article from Creighton Law Review provides some historical context. Government prosecutors are the overwhelming norm now, but private prosecution used to be more common. Indeed, New Jersey still has limited authorization for private prosecution (Court rule 3:23-9(d)). The New Jersey rule governing the grand jury is 3:6, and rule 3:6-8(a) on return of indictment says: An indictment may be found only upon the concurrence of 12 or more jurors and shall be returned in open court to the Assignment Judge or, in the Assignment Judge's absence, to any Superior Court judge assigned to the Law Division in the county. With the approval of the Assignment Judge, an indictment may be returned to such judge by only the foreperson or the deputy foreperson rather than with all other members of the grand jury. Such judge may direct that the indictment shall be kept secret until the defendant is in custody or has been released pending trial and in that event it shall be sealed by the clerk, and no person shall disclose its finding except as necessary for the issuance and execution of a warrant or summons. Note that the jurors decide on an indictment and return the indictment to a judge, not the prosecutor. In the rules governing grand juries, the prosecutor is allowed to be present and to speak, but has no official controlling role, other than whatever leadership is granted by the foreman. I don't know whether it is universal that grand juries do what the prosecutor tells them to, such as indicting a ham sandwich, but at least theoretically they have the power to act independently. The rules actually do not say who can ask questions of a witness, which could lead one to conclude that of course it is the prosecutor (and that the prosecutor does everything, except vote on the indictment). | 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. | 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. | If the government withholds information that is pertinent to the credibility of a witness is that cause for a mistrial? Only if the error is not harmless under the standard applicable to evaluating harmless error in criminal cases (there is a voluminous case law on that point). Basically, it means that a new trial may be held and a conviction vacated on a charge against a particular defendant if there is a reasonable possibility that the withheld evidence, when considered in light of the total picture of evidence presented at trial, might have changed the outcome on guilt or innocence. Does whether the government knowingly or unknowingly withheld this information influence whether a mistrial will be granted? Not really. Knowledge is imputed. If someone in the prosecution team including the police knows, then it is known to the entire team for Brady purposes. If no one knew that it had the information (e.g. a key exculpatory document in possession of the prosecution was misfiled in one of dozens of bankers boxes of documents that it seized in a search and no one reviewed those particular boxes knowing to look for a document like that one or attuned to its potential significance, since it wasn't supposed to be in the place where it was filed), then it hasn't been withheld in the Brady sense unless someone specifically asked for the information in question with enough specificity that it could have been located if they looked at what they already had. The knowledge that must be disclosed is what the prosecutor's office or the police the prosecutor's office is working with knows. So, if a beat cop hides exculpatory evidence from the prosecutor's office, that is a Brady violation, but if the cops do a sloppy investigation that fails to reveal exculpatory evidence that is out there to be found, it isn't a Brady violation. Likewise, if a cop in another department halfway across the state knows something that impacts the credibility of a witness and the prosecutor is totally unaware of the existence of that information as are all the cops working on the case, then that isn't a Brady violation. What If It Isn't A Brady Violation? Exculpatory evidence discovered after the trial that isn't a Brady violation not to disclose may still be grounds for a new trial based upon newly discovered evidence in a motion for post-trial relief. But, the standard to get the court to grant a new trial based upon newly discovered evidence that was not withheld in a Brady violation is much more stringent than the mere harmless error standard. Instead: With a single exception, criminal defendants in the United States seeking a new trial based on newly discovered evidence are required to establish only that the new evidence makes it more likely than not that, in a new trial, they would be acquitted. Ohio requires clear and convincing evidence rather than a mere preponderance. There's a lot of case law on what constitutes newly discovered evidence which is "new, material evidence that was unavailable at the time of the original trial[.]" If evidence was available, but not used at trial, it can't be presented in a motion for new trial based upon newly discovered evidence. Often this means that it can't be considered even if the salience of the evidence previously available is only clear later in the light of other evidence that is genuinely newly discovered, or the defense attorney's failure to use that evidence in the first trial was negligent to a level constituting legal malpractice. |
When can you use images from arxiv papers for commercial purposes? I was reading https://arxiv.org/abs/1412.6572 and noticed that the key image involving pandas is reproduced all over the Internet. I would like also to use the image in a commercial talk I am to give. I searched online and the suggestion is to read the individual license. In this case https://arxiv.org/licenses/nonexclusive-distrib/1.0/license.html says only: I grant arXiv.org a perpetual, non-exclusive license to distribute this article. I certify that I have the right to grant this license. I understand that submissions cannot be completely removed once accepted. I understand that arXiv.org reserves the right to reclassify or reject any submission. What is the situation with using an image from a paper licensed in this way in a commercial setting (with suitable attribution)? (I have emailed one of the authors to ask them directly but they have left their previous employer.) | Let me give some nuance, if not a definitive answer, since I'm not a lawyer. First, ArXiv holds only a license, not the underlying copyright. You need to contact the copyright holder to get permission (and a license). That may be the authors themselves, or a journal if they have assigned the copyright to it. However, it might be more complicated, especially for commercial use. Since the authors of papers frequently use images created by others, sometimes correctly and sometimes not, you should explore a bit more. Perhaps the paper itself will have a citation of the figure and an indication of its source, and hence of its copyright holder. In that case, the authors may not be able to help you, since, at best, they probably also hold just a license. However, for some academic purposes and in some jurisdictions an academic work can be permitted to use a figure (or other things) without regard to copyright. This is called fair use and it varies around the world. But a commercial work won't be able (probably) to depend on the same exception to copyright law and you still have to find the copyright holder. Moreover, even if the authors have a proper license (explicitly), that license (a) may not be transferrable and (b) might be for non-commercial use only. Academic copyright holders often (not universally) issue their work under a fairly permissive license but that is restricted to non-commercial use. Since they hold the copyright they can also issue additional licenses against it if they like, but need to do so explicitly. Ultimately, to use the work of others you have to deal with the copyright question. It is further complicated by the fact that a figure may be considered under the law as a "complete work" even if it appears within another work. So, replicating it is less likely to fall under fair use rules - though they vary. And, there is one other question you should ask yourself. Is your talk really a commercial use? If you are an academic, it may be a subtle question, or not. | I am assuming that you are in the United States for this question. Please correct me if this is not the case. MathWorks still holds the right to take action, which may be anything from cease-and-desist letters up to litigation. You have followed the correct process in asking for permission to use a trademark. The owner of the trademark, MathWorks, has given you their answer, which is quite simply, "no". You may not feel that their reasoning is fair, but the default state of trademarks is that they are under ownership of whomever created them, and you do not have permission to use them. Things will remain that way unless MathWorks changes their mind. It doesn't matter if it feels dismissive of them; they are under no obligation to even consider requests to use their marks. If they didn't explicitly say, "sure, go ahead", or even, "yes, you may use it provided you follow a list of conditions", then using their trademark will be an unlicensed usage. If you still would like to pursue getting permission to use their trademarked assets, you will need to try to contact them again. Until they say otherwise, using their trademarks will be considered unauthorized use. (Edited to add this clarification brought up by @David Siegel): However, your usage might not be violation of trademark. The primary purpose of trademark restriction is to stop someone from misrepresenting a product as being from the entity that owns the trademark; this stops someone from, for example, selling a cola soft drink called "Coke-a-Cola". The reasons for this are manyfold, but the basic idea is that allowing that type of usage means that consumers might not be able to tell that your product is distinct from the original, and could then mistakenly attribute the quality and level of service of the previous brand with the new product. If your usage of MATLAB marks is such that you are identifying the products used as from MathWorks, and not yourself, and are doing everything in good faith to disassociate your website and/or offerings from MathWorks, it is possible that your usage would be considered correct usage of trademark. Even if it is legal usage, MathWorks still may decide to take action. If MathWorks believes that your usage is unauthorized and that it is trademark violation, they may decide to take action. This is regardless of whether it actually is; until you have this case in front of a court, you will not get a definitive answer. We cannot answer whether this is a legal usage of trademark. Ultimately, whether or not a usage of a mark is considered to be correct usage is a question that can only be answered by the courts, which means the only person who can give you concrete advice on a course of action is a lawyer. In lieu of proper legal advice, you will need to weigh the risk of MathWorks taking action against your usage with the benefit you receive from usage. (Edited to add this clarification by @Dale M): Regardless, you may be breaking copyright by using the logo. There is a separate issue besides just trademark at play here. The copyright for the MATLAB logo belongs to whomever created it/owns it (presumably, MathWorks in this case). Using the logo without permission is a copyright violation. The only case in which this would not be a violation is if the logo is released for use in general under a compatible license, such as Creative Commons; do note that these licenses typically have additional conditions, such as requiring attribution. If you are unaware as to whether there is a such a license, or if you fail to follow the terms of the license, usage of the logo almost certainly constitutes copyright infringement. | Wikipedia has two kinds of pictures: Reusable pictures, most of them stored at http://commons.wikimedia.org Copyrighted pictures under fair-use, stored on the local Wikipedia (in your case, the Russian Wikipedia) but not on Commons. To know what case it is, just click on the Wikipedia picture, click on the blue "Description" button, and see whether it redirects you to Commons or not. Pictures on Commons are reusable if you include the author and license (see the full requirements). Commercial use is OK. Fair-use pictures can not be reused. Unfortunately, https://ru.wikipedia.org/wiki/Файл:Tschedrovitsky.jpg is in the second case, so you can not reuse it, even in a non-commercial setting, unless you can justify that your usage qualifies as fair-use in your country. Hopefully one day someone will find a legally reusable picture of Shchedrovitski and upload it to Commons. | From the perspective of US law: Scenario 1: Removing the watermark is perfectly legal, obviously. You own the copyright. Scenario 2: Abandonware is not really a thing in the US when it comes to copyright (and the Wikipedia article you linked says this.) Even if the company went out of business, the copyright almost certainly went to somebody - the former owners, the creditors, etc. As far as the Internet Archive goes, they are taking advantage of an exemption in the DMCA's anti-circumvention provisions, along with the copyright exemption found in 17 USC § 108. But both of these exemptions require you to be a "library or archive" to take advantage of them, and you are not a library or archive, so you cannot take advantage of either. As a practical matter, if the software is really abandoned it's unlikely that anyone will actually come after you for infringement, but that's not quite the same as it being legal - you could be on the hook for up to $150,000 in statutory damages per work infringed, if the owner does sue you. You could attempt to claim fair use, of course. If the image is abandoned you might get a favorable result on factor 4 of the fair use test (the effect on the market for the original) since there's no market if nobody can find the owner. But it would depend on the other factors; that alone wouldn't get you fair use. Scenario 3: I'm not sure where you get the idea that downloading a copyrighted image to your desktop is somehow protected. It isn't automatically legal to save a copy of something just because it's on the Internet. And the existence of a watermark may indicate that someone wanted to prevent the file from being copied. The website containing the image will likely have terms of use, which may indicate whether or not you're allowed to make a copy. For example, Stack Exchange's TOS says in part: Subscriber may download or copy the Content, and other items displayed on the Network for download, for personal use, provided that Subscriber maintains all copyright and other notices contained in such Content. | Probably Not The creator or owner of a piece of software does not in general have any copyright over the output when others run the software, unless that output is itself a derivative work of input supplied by the copyright owner, or forming part of the software. In this case the translation is a derivative work of the 19th century original, but that is assumed to be in the public domain. SAo google has no copyright on the resulting translation. But copyright protection is only available for "original works of authorship". (See 17 USC 102 in the US, and similar laws elsewhere.) A machine-produced translation is not an original work, and it is surely not then work of the author of the overall book. However, the author would still have a copyright on the book as a whole. The legal situation is no different than if the author had simply quoted a 19th century work. One may incorporate public domain works into a later work, and that later work is still protected by copyright, provided that there is enough original contentr to make the work as a whole "an original work of authorship". Others may use the PD [arts, or the original from which they are taken, but not the rest of the work (beyond what fair use would allow in any case). For example, I have made a number of posts here on LAW.SE. In several,of those I quoted sections from one of the numbers of The Federalist. That 19th century work is in the public domain. Anyone else may re-quote the passages I quoted from it. But that gives them no rights to use the rest of my work, except as the CC-BY-SA license or fair use permits. So the author would retain copyright on the book as a whole. But soemoen who merely quotes or uses the translated 19th century article but none of the original parts of the book would not be infringing that copyright. I say probably in the header, because I do not have any actual case-law to cite here. It is possible that some court has rules otherwise on the subject of the copyright on the output of a software tool, but I strongly doubt it. | Apparently not The full text of the license is not included on the page you link to, or on any linked page that I checked. But the FAQ says: free educational licenses can be used strictly for non-commercial educational purposes (including academic research). Exactly how this company defines "non-commercial educational purposes" is not stated. If work is done on a student project, and after a non-student license is purchased that project is commercialized, would the license have been violated, and if so, would the company be likely to sue? The fist question cannot be answered without the full text of the license, and the second would require reading the minds of the company officials. But it seems reasonably clear that this is not what the company has in mind. Another user has pointed out a link to the actual license terms which I failed to note. Section 3.1 of the license says, in relevant part: ... JetBrains grants You a non-exclusive and non-transferable right to use each Product covered by the Toolbox Subscription for non-commercial, educational purposes only (including conducting academic research or providing educational services) ... This would seem to confirm what the FAQ quoted above says. It is hard to see how any development intended as an eventual commercial product would be covered under such a license term. It would appear that a regular non-student license would be needed for such use. | What a lovely question! US Copyright law is clear: the author of a creative work owns the copyright unless it is work for hire. In this instance, the photographer is not doing work for hire so they own the copyright. However, the photographer does not own a copy of the photograph – that is owned by the owner of the camera. The photographer cannot demand that they give him a copy but the parties can agree on such a transfer on whatever terms they like. As the owner of a “physical” copy they can do what they like with that copy but they cannot duplicate it except as fair use or as licensed. They could sell the memory card to whomever they like but the new owner couldn’t copy it either so it would seriously limit publication. Similarly they could move the file provided there was only one copy. Arguably, they could make a print of it providing they deleted the electronic version without copyright violation. Which brings us to who owns the copyright now. The camera owner can argue that the photographer has gifted the copyright to them. This is quite a strong argument as the parties' intentions at the time of arranging the taking of the photograph is that the photographer would have no further interest in it – after all he probably doesn’t want to hang a photo of some strangers on his wall. However, in many jurisdictions, including the united-states, copyright transfers must be in writing. As a fallback position the camera owner can argue there is an implicit license given even if copyright was not transferred. The scope of the license then becomes an issue. It is probably indisputable that the license is perpetual and royalty free. What is arguable is if the license allows commercial exploitation or only personal use. This is where the battle lines would be drawn and I don’t know how it would play out. Other jurisdictions are different For example, in Australia, copyright in a photo commissioned “for valuable consideration” for a “private or domestic purpose” vests in the commissioning party, not the photographer; even though this is not work for hire by an employee. For the circumstances you describe, the purpose is “private or domestic” but there is no “valuable consideration” so the photographer owns the copyright in this case. However, if there was an agreement to “pay” the photographer (even one as simple as “I’ll take your family photo if you’ll take mine”) then the person who asked for the photo to be taken owns the copyright. | 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 |
Could Executive Order 9066 be repeated with other groups today? In World War II, Executive Order 9066 suspended basic rights of Japanese Americans - even people whose loyalty to the United States was never questioned, though the government feared the group as a whole might contain some spies - and led to a lot of people (>100K) being rounded up and kept at internment camps. Korematsu v. United States ruled this was constitutional. Today, in the "War on Terror," at least one politician can make surprisingly strong statements about plans for negative treatment against large groups of people (e.g. Muslims) because of concerns that a small minority of them might be radical enough to kill a bunch of people, and [the politician can] remain surprisingly popular. Supposing such a candidate were elected President, could that President do something like Executive Order 9066 again today? If not, specifically why not, citing what's changed about the US constitution between WWII and now to prevent that? Answers that just say "no political leader would try that because it'd be so unpopular" are not satisfactory answers to the question and not consistent with the evidence of what happened before and what is happening in present polls. | WWII Supreme Court Cases During WWII, the Supreme Court dealt with three main issues in their cases on Executive Order 9066: curfews, exclusions, and internment of persons with Japanese ancestry. In the lesser-known Kiyoshi Hirabayashi v. United States case, the court had to determine whether imposing a curfew on those of Japanese descent was valid. The main constitutional issue ended up being the effectiveness of the Fifth Amendment in providing for due process of law in times of war. In the end, the court decided that a curfew was indeed justified. Following this, the majority of the court found in Korematsu v. United States, that the exclusion of those with Japanese ancestry from certain military zones (in this case, the West coast) was also constitutional. In their decision, they heavily relied upon the Hirabayashi case. The question of internment of people with Japanese ancestry was not actually decided constitutionally. Another case, a habeas corpus case, Ex parte Endo might have resolved it, but the Court concluded this case in favor of Endo without going to the constitutional level. A day before this decision was announced, the government suspended Executive Order 9066, leaving the question unresolved. In these cases, Justice Frank Murphy's opinions stand out. In Hirabayashi, he sternly warned of the racism involved, but felt that the curfew was indeed justified. However, in Korematsu, he evidently felt that the exclusion was without basis and dissented, calling the majority opinion "legalization of racism." Current Law In theory, these cases still stand. This is because they haven't been explicitly overruled, and the changes to the constitution since Hirabayashi aren't relevant: Amendments XXII and XXV have to do with procedural issues with the office of the President, amendments XXIII, XIV, and XXVI are related to voting rights, and XXVII addresses Congressional salaries. The constitution for the purpose of a similar order is thus unchanged, and so should theoretically be covered under Korematsu & Hirabayashi. However, its effective status as precedent is shaky. For one, it has been widely condemned, and courts would likely avoid using Korematsu & Hirabayashi if possible, or attempt to make a distinction from them given a slightly different order. Second, the convictions against Korematsu and Hirabayashi were overturned in the 1980s based on evidence being possibly concealed by the government. This was confirmed by the Department of Justice in 2011. However, this is an error of fact, and as such the ratio decidendi (legal reasoning) used would still technically stand as precedent. Lengthy Update: The Supreme Court has since declared Korematsu incorrect in Trump v. Hawaii. However in doing so, the court explicitly distinguished the two cases. Thus, many consider the declaration to be obiter dictum, i.e. an aside that is non-precedential. I'll quote the relevant portion so that readers may decide for themselves: Finally, the dissent invokes Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission. [...] The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—"has no place in law under the Constitution." Additionally further muddying the issue is that the judgment directly moves from referencing Korematsu to referencing concentration camps. But as noted above, Korematsu dealt with exclusion, not internment in concentration camps as is often popularly believed (though Murphy's & Roberts's dissents dispute the distinction so the Trump v. Hawaii judgment may implicitly be validating this). Korematsu paragraph 20: It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. Future Challenges If another such order occurred, it would almost certainly reach the Supreme Court. The Court would then have to adhere to, reconcile with, or overrule Korematsu & Hirabayashi. In Hirabayashi, the following key piece of reasoning was given (and quoted in Korematsu): Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. Regardless of personal beliefs, it is hard to argue the logic behind this particular statement (mainly because it is so broad, in my opinion). However, these "prompt and adequate measures" would still have to be weighed against the Fifth Amendment. Additionally, we now have a historical example of what may happen if race-based exclusion were allowed, and this could inform the justices' decision. A completely different way that such an order could be ruled unconstitutional could be through separation of powers violations. It could be ruled that Congress cannot constitutionally delegate the powers expressed in Executive Order 9066, but this is rare. It was mentioned in Hirabayashi, but the court did not consider this issue, saying that since Congress agreed with the order, this point was moot. Conclusion Though the letter of the law suggests that another order like Executive Order 9066 is possible, in practice it would face significant hurdles. Such an order would likely face challenges based on the Fifth Amendment and almost certainly make its way to SCOTUS. Then, it would be up to them to decide. I'll end with this quote from the late Justice Antonin Scalia: Well, of course, Korematsu was wrong [...] But you are kidding yourself if you think the same thing will not happen again. | Yes. In some common law jurisdictions, such as Canada, the United Kingdom and even some U.S. states, the government may under some circumstances refer a legal question to the appropriate Supreme Court (Privy Council in the U.K.) for an advisory opinion. These opinions are non-binding, but have large influence because they are often made by the same judges that would otherwise end up dealing with the question should it occur in a case. One common law country in particular stands out in this field: Ireland. Under Article 26 of the Irish Constitution the President may, with some exceptions, refer a bill to the Supreme Court to test its constitutionality. The referral is optional, but once made, the Supreme Court's decision is binding. The relevant portion: 3 1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill. [...] 3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced. This power was last used successfully in 2004. | 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. | The US Supreme Court has made some decisions that legal scholars, other judges, lawyers, and people in general have strongly criticized as mistaken, but none anywhere nearly as wild as the one suggested in the question. Many such, well let me call them "disputed", rulings have been later overturned by the court itself. A well known example is Minersville School District v. Gobitis, 310 U.S. 586 (1940), which was overruled a few years later by West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Many of the so-called Lochner era economic decisions were also eventually overturned by the Court itself. Some disputed holdings have been altered by changes in the law, State or Federal. Some have been overturned via a constitutional amendment, such as Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), which is now held to have been overruled by the Fourteenth Amendment, although the Court did not come to that conclusion until early in the 20th century. Perhaps the most notorious case is Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) which held that a person of African descent could never become a US citizen, and that Congress was without power to prohibit slavery in any US state or territory. This is perhaps the most denounced decision of the US Supreme Court in its history (See the linked Wikipedia article for a few such comments.) This decision was undone de facto by the outcome of the US Civil War, and de jure by the adoption of the Thirteenth and Fourteenth Amendments. Some cases have later been treated as "bad law" even though not formally overturned. An example is Korematsu v. United States, 323 U.S. 214 (1944), in which the Supreme Court upheld the removal of US citizens of Japanese ancestry from the US Pacific coast during WWII, and their confinement in what has been described as a series of concentration camps. This has not been formally overruled, but in Trump v. Hawaii No. 17-965, 585 U.S. ___ (2018), Chief Justice Roberts wrote: The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—'has no place in law under the Constitution.' 323 U. S., at 248 (Jackson, J., dissenting). [quoting Jackson's dissent in Korematsu] And some cases, although much disputed, still stand as good law. The case of Flood v. Kuhn, 407 U.S. 258 (1972), holding that Baseball continued to be exempt from anti-trust laws, federal and state, has been much criticized, but remains in force to this day. (See the section "Subsequent jurisprudence" in the linked Wikipedia article) Congress has not, so far, acted to limit the exemption, as the opinion indicates that it had the power to do. In short, a US Supreme Court decision, however "erroneous" or "absurd" commentators or the public may consider it, remains the law of the land until it is overturned or distinguished by the court, or made obsolete by changes in statute or in the Constitution itself. It the highly unlikely situation described in the question, John Doe would remain in prison until his sentence expired or he received a pardon. | It is difficult to keep track of the rapidly changing legal variables, but it would be illegal and unconstitutional for state police to set up an unauthorized stop-and-search checkpoint on the road ("due process" means "following the law"). As a prelude, there would have to be some higher authority that empowers them to do this. You would have to scrutinize the emergency powers legislation of every state to be certain, but no governor has the power to mandate blanket body searches in case of a medical emergency. (Martial law shifts enforcement of the law to the military, but doesn't generally create arbitrary decree-writing powers). The legal foundation of such searching would have to be a new law: then the question is what the law requires that could make on-the-road body searches constitutional. Since the right to be free of unreasonable searches is a fundamental constitutional right, this law would be reviewed under strict scrutiny. Searches "just for fun" will not pass such scrutiny, nor will "because it's an emergency" or "keep the public safe". Having the disease is not and cannot be a crime, so this law would have to be founded on a strict no-travel requirement. That brings the matter within the sphere of the "officer safety" exception in the case of an arrest. I'm not suggesting that an absolute travel ban would be upheld as constitutional in the US, but that is the kind of legal foundation that would be required for state police to force people to be Covid-searched. | It's not clear what the big deal is. Congress has already passed vast numbers of laws for POTUS to enforce, and has left the details of implementation up to the executive branch. The main limitation is that you need a Congress to fund any new federal government projects. The Constitution anticipates this problem, and there are clauses regarding filling vacancies (clearly applicable to the dead). Assuming that zombies are rioting in the streets, POTUS can invoke the National Emergencies Act, issuing an executive order to call out the National Guard. | The US Constitution Article II, Section 2 grants sayt that the President "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment". It does not anywhere say that a pardon can be rescinded. Until a constitutional amendment is added giving the president the power to rescind a pardon (zero chance of that happening), a pardon is permanent. For reference, Ex Parte Grossman, 267 U.S. 87 addresses the question of limiting the presidential pardon power, where the losing side argued that criminal contempt is not an "offense against the United States", and the Supreme Court held that criminal contempt is such an offense. Nothing has legally changed since then. | Art II, Sec 2, Cl 1 of The Constitution says of the president "and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment". The Constitution does not state any further restrictions on the presidential power, and there are no statutory limits, because, as observed in Ex parte Garland, 71 U.S. 333 The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control. Accordingly, presidents have written pardons on and with numerous different writing instruments. Insofar as there are no constitutional restrictions beyond the aforementioned, it is not required that a pardon be signed, or that it be on a tangible semi-permanent medium. It is impossible to know what such a pardon tweet would look like, beyond the limit on length. The one place where a presidential signature is required is under the Presentment Clause, that when presented with a bill that passed the two houses of Congress, "If he approve he shall sign it". Such a signature need not be actually written by the president, it may and often is written by an autopen. The question of the legality of autopen signatures for bills has not been presented to SCOTUS, but the Department of Justice has issued an opinion (July 7, 2005) that it is legal. I have failed to locate a repository of presidential pardons (the actual documents), so I do not know if, so far, all presidential pardons were written down and signed, though I would expect it to be so. The Arpaio pardon was signed (or auto-signed), likewise Obama's final mass-pardon on Jan 17, and previous Obama pardons were, but pre-Obama, DOJ does not provide any document. |
How does the first limb of the McRae test make the second limb unnecessary? O'Sullivan & Hilliard's The Law of Contract (2018 8 ed). p. 312. The green (party's believing a mistaken unreasonable belief) obviously can be distinguished from the red (about causation). Furthermore, I don't think the HCA Justices in McRae would be dumb enough to concoct two limbs that couldn't be distinguished. Thus how can the orange contend that the green "is identical" to the purple, but that the purple makes unnecessary the red? With math symbols, if green ≠ red and green = purple, then how can purple make unnecessary red? | If I read this correctly, (and more context would support this, but I don't have time to do research at the moment; I also don't have the book in question, so I'm only basing off of the provided snippet) then it appears two different (higher court) justices making rules, not only to guide their own judgements before them, but for reference for lower court justices to base their rulings against. Note that these two cases appear to have taken place about 3 decades apart, and in two different countries, albeit with related legal codes. The Purple is "identical" to the Green, because their wording is near enough identical between the two passages. I don't think "dumbness" or lack of distinguishably is implied. Rather McRae's rule is Conditions Green AND (logical "and") Condition Red, while the British rule is just Condition Green. The orange text suggests that, under the rule in Associated Japanese Bank Ltd v Credit du Nord SA, Condition Red need NOT be shown. I.e., you don't need to show that a party is responsible for convincing the other party of an unreasonable falsehood, to prevent the first party from using the doctrine of "common mistake". It also suggests that the rule from McRae does impose Condition Red. Essentially, the text is describing two different (non-exhaustive) tests for determining when the doctrine of "common mistake" can be invoked. | The parties to the contract have not changed; they are still the purchaser company and the scrap vendor. The obligations have not changed; they are presumably based on amounts of stock and monetary value. The only changes are in the name of one party and its ownership, so unless the contract permits termination for those reasons (not unheard of, if a contract has been intended to provide/avert support from/by a particular party or symbolism) the contract still stands with all its terms. A novation is not needed. | Here is an excellent (and extensive) explanation of jurisprudence regarding the "good faith exception" to the admissibility of evidence found due to an error. In short: Yes, the contraband found in Unit B would be evidence admissible in court. (Of course, evidence found in Unit B would only support charges against whomever had a nexus to that property. If the owner of Unit C had no access to Unit B, then evidence in Unit B would not per se implicate him in a crime.) Law enforcement will not return seized property if it believes the property is "contraband." As an example, in Pennsylvania a person can petition a court for return of property seized by law enforcement: Rule 588 requires the petitioner to establish entitlement to lawful possession of the property, but the motion will be rejected if the State successfully argues that the property is contraband, or "derivative contraband" (which has been defined in case law to mean there is "a specific nexus between the property and criminal activity"). | Fun one! First on the question of whether it matters if the agreement is written, I don't imagine it would make a difference in most of the US. We only require written contracts for agreements that meet certain requirements, those include contracts over a certain dollar amount, contracts involving the sale of land and contracts that cannot be completed within the year. Depending on the facts of your hypo, the writing requirement may be in play, but either way, it doesn't really make the situation more or less interesting; it's not a unique issue to this sort of contract. Second, the baseline assumption is that people can form legally binding contracts. The question is, whether something forbids the sort of contract you have in mind. I can think of a few things: It would be reasonably challenging to define what conduct is forbidden by the agreement. But that is merely a challenge not a road block. You could easily come up with a laundry list of forbidden acts to accomplish your result. Two people cannot contract to force the behavior of a third person, barring special circumstance. But again this isn't important since it's just a matter of drafting. In other words the contract probably would not say Juliet cannot go to the movies with Romeo, rather it would say Romeo cannot go the movies with Juliet. Even drafted in the less ideal way, he operative concept is whether the father could enforce a breach. So, the contract COULD be worded to say "If Juliet attends a movie while Romeo is present, Romeo must pay the father $xx dollars." Most importantly a party cannot form a contract that violates public policy. This is sometimes referred to "legality of objects", as in the object/goal of the contract must be legal. Contracts for prostitution, or the sale of a child (i.e. certain adoption contracts), or illegal products, would likely trip over this category. Here however, I can't readily think of a public policy basis to challenge the contract. Surely (some) states have stated a public policy favoring marriage, but it would likely be a challenge to contend the contract to not date (or not marry) was void because of such a policy. I can't think of any reason that the father couldn't enforce this sort of agreement. Finally, even if the contract was not enforceable, it's highly likely that Romeo could not simply take the money and breach. There are basis to demand return of the money even if no enforceable agreement exists. I am not your lawyer. Seek counsel from a lawyer in your area before taking any action. This answer is provided without research and for purely academic reasons. I have no special knowledge of this area of law. | From a legal perspective, I think the ruling is reductio ad absurdum correct. California voters passed Proposition 65. Consequently, CA Health and Safety Code 25249.6 says "No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10". Section 25249.8 mandates a list, and defines "known to the state" A chemical is known to the state to cause cancer or reproductive toxicity within the meaning of this chapter if in the opinion of the state’s qualified experts it has been clearly shown through scientifically valid testing according to generally accepted principles to cause cancer or reproductive toxicity, or if a body considered to be authoritative by such experts has formally identified it as causing cancer or reproductive toxicity, or if an agency of the state or federal government has formally required it to be labeled or identified as causing cancer or reproductive toxicity. Acrylamide is so listed, and has been for 18 years, reason code listed as "AB-IARC, AB-US EPA". The law does not say that "the benefits may outweigh the risks", nor does the law say anything about usual doses. There is an "escape clause", if one (the defendant) can prove that there is no effect (25249.8(b)): An exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical pursuant to subdivision (a) of Section 25249.8. In any action brought to enforce Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant. The answer on Skeptics does not address the EPA finding (and the science underlying it). At this point we can only conjecture about the defense's scientific argument (the ruling is still in the works, pending feedback from parties), but the judge said "While plaintiff offered evidence that consumption of coffee increases the risk of harm to the fetus, to infants, to children and to adults, defendants' medical and epidemiology experts testified that they had no opinion on causation" and that the coffee makers hadn't presented the proper grounds at trial to prevail. Insofar as human subjects testing of suspected carcinogens is illegal, any argument that "but this only shows that it causes cancer in rats" is legally empty: rats are a suitable proxy for humans. This is a state report addressing a potential carcinogen, 4-Methylimidazole. The report notes that to have a No Significant Risk Level finding, the substance must have less than a "daily intake level posing a 10^-5 lifetime risk of cancer". A further requirement is that "risk analysis shall be based on the most sensitive study deemed to be of sufficient quality" (whatever that is). This study mentions a previous study which was rejected because "these studies do not meet the criteria specified in Section 25703(a) because the experiments were not designed to adequately control for and examine the potential carcinogenicity of 4-MEI". Basically, Spiegelhalter's argument is too meta, and doesn't constitute a proof that acrylamide poses no risk of cancer. If the defendants commissioned an independent scientific study to overcome earlier carcinogen findings, perhaps the study failed on technical grounds. The bar that has to be cleared is very high. The EPA regulation says that the maximum contaminant level goal for acrylamide is zero. That is the carcinogen-science basis for specific allowable levels in water supplies. | 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. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | I'm sorry to deflate what is clearly a very philosophically interesting question, but the law is straightforward here. The truth, essentially, is the set of facts that you believe to be true. Yes. It means that you will not lie by omission, and that you will provide the relevant facts. No, you don't need to recount history since the first instant of the big bang. Only expert witnesses may answer by giving their opinion or evaluation. This is presumed accurate by their experience and where it is not accurate, the other side may present opposing expert witnesses to contest their conclusion or evaluation. Laypeople are permitted to answer only with their recollection of facts. Lawyers may not ask them what their opinion is, although by your definition every question is about opinion, since perception and memory is limited. But the question "What colour was Mr Smith's house?" and "What architectural style informed the facade of Mr Smith's house?" require different amounts of expertise and opinion. "Truth" isn't jargon, or even technical language here. I generally aim to be truthful, and so when someone asks me what time it is, I don't feel compelled to answer to the nano/picosecond. Would you call me a liar? Am I lying by omission? Similarly, if someone asks me what colour a car is, I don't feel compelled to say "I can't possibly know, because my perception may differ from yours. If you honestly feel that when someone asks you to be truthful about something, then you must either be lying, or lying by omission if you don't start your answer with the first instant of the big bang, your problem is not one of law. |
Does CC-SA (Share-Alike) force me to provide a free version of the derivative? I'm currently working on a project that uses work covered by the CC-BY-SA license: https://creativecommons.org/licenses/by-sa/3.0/ In the license, it states that I can: Adapt — remix, transform, and build upon the material for any purpose, even commercially. And must: ShareAlike — If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original. My project itself can definitely be considered a derivative of the licensed work, or at least builds on it in a way that I'm happy to accept it needs to be shared under the same license as above. What I'm unsure of is: If I sell my derivative work, am I also required to share it for free? Or can I sell it how I like? I'm aware that no matter how I distribute my work; I would have no right to prevent anybody else redistributing it for free (or even make money from it themselves). But it's quite a different situation if I'm also required to provide it for free. | The price is not one of the terms and conditions of the CC-SA license. You may chose to attach a price to a derivative work (which you have the right to create under license section 3.b). But any person who receives the derivative work legitimately (from you or from someone who got it from you, directly or indirectly) must get it under the CC-SA license, and has the right to redistribute it, and may do so at no charge if that person so chooses. Also, you may not impose any copy protection or other technological measure that would prevent exercise of the reuser's rights. Whether selling a work that may be redistributed freely is good business is your decision. | Yes That is very simple - copyright is an exclusive right that starts automatically with the creation of a copyrightable work. The default situation is that the author has an exclusive rights to make copies of the work and derivative works. If the code is published somewhere by the author but the author has not said anything about its licence or copyrights, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. They have the right to just publish it somewhere, others don't. If you try to contact the author and they don't say anything and ignore you, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. If it's impossible to find the author (e.g. I have certain cases with literary works where it's not clear who inherited the rights after the author died), then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. That being said, certain forms of reuse (recreating ideas, learning from them, etc) would not be a copyright violation. But in general the situation with the author not saying anything is almost the same as the author explicitly stating "all rights reserved, you're not allowed to do anything, violators will be shot" - some specific uses are allowed even against author's wishes (e.g. 'fair use' clauses) but everything that needs their permission really does need their explicit permission. | The film you want to base your game on is probably covered by copyright and likely trademarks. For purposes of the question I'll assume it's not in the public domain (if the film was made before 1926 for example). If you used the film to create your game, it would be a derivative work. Derivative works require the consent of the copyright owner. Distributing it without their permission would leave you open to lawsuits for copyright infringement, unjust enrichment, and possibly others. Fair use/fair dealing likely doesn't apply here. This isn't criticism, parody, or a transformative use. You may be able to get away with this by flying under the radar if you don't distribute it for profit or on any large scale. Some studios are more litigious than others and some accept that leaving fan works alone is better than the bad publicity that comes with shutting them down. However, this is entirely reliant on the goodwill of the studio. The legal way to do this is to get in touch with the copyright holder and ask permission. This may be in return for something else- usually money, royalties, and/or some creative control over your work. This may not be feasible though as a large company may simply ignore such requests from random people. Note that a lack of a response in this case is not permission. | Copyright protection is about certain acts, and not about relationships between products. Copyright law says that the creator of an original work hold the exclusive right to copy and to authorize creation of derivative works. Copyright law does not say that anybody can freely create derivative works as long as they are different to a certain extent. So if you take an original Mario and modify it a teeny bit, that is a violation of copyright; if you take an original Mario and modify it hugely, that is a violation of copyright. Degree of similarity is relevant on some cases when the factual question arises whether the allegedly-infringing work is based on some protected original. This is most obvious in music cases, where all baroque music has some similarity to all other baroque music, all death metal has some similarity to all other death metal, and so on. There is not a legal quasi-statutory standard for measuring substantial similarity in music. The scientific underpinning of such a standard would be based on (weighted) combinatorics and the idea that there are only so many tunes possible (that would be a huge number, until you get to the "within a genre" condition). It seems obvious (by your "admission") that the derived works are based on protected works, so Nintendo's permission is required to legally create such works. However, you do or would hold copyright in your unauthorized derived work. Without a trail of evidence such as a SE question pointing to the connection, the derived images might be hard to connect to the originals. In addition, you may be able to avail yourself of a "fair use" defense, in case you get sued by the original creator. Factors favoring such a defense are the insubstantiality of the copying (a small portion) and the "transformativeness" of your creation. | You are required to provide a copyright notice on your work, such as putting (c) rhino 2016 in the liner notes. Nothing precludes you from licensing that copyright in any way you want, such as Creative Commons. As long as you aren't in violation of the last sentence (your work is not primarily the samples, and you actually made a song with them), then others should be able to use your work with no restrictions other than what you yourself place on the work. The purpose of requiring a copyright notice on derivative works is to give notice of who the actual author is and distance the original author from the derivative work. If you take their samples and make a song that is later at the center of a lawsuit (copyright, defamation, etc), the the copyright notice will hopefully steer people first to the derivative author and not the original author. That is the purpose of the clause in the copyright grant above. | See https://stackoverflow.com/legal/terms-of-service and https://law.stackexchange.com/help/licensing. As with most social media sites, your contribution of content does not transfer ownership of any copyright in the content; rather, you grant to the platform a non-exclusive license. Because the license is not exclusive, you can grant similar or different licenses to other parties, which generally happens when you post the same content on other sites. (Of course, you can only grant licenses when you own the copyright or have a license that allows you to grant a further license, so posting content created by others can be complicated; this seems to be beyond the scope of the question, though, so I mention it only in passing.) To answer with respect to a specific site, of course, you have to look at the site's terms of service. | You are concerned that your application is somehow a derivative work of MariaDB and therefore subject to the GPL. It's not totally clear to me whether that is the case or not. But it doesn't matter, because you are not distributing MariaDB itself (or any other part of your application). You're running it on a server which users are connecting to remotely. From MariaDB's licensing FAQ: Internal usage is free The GPL license only affects code that you distribute to other parties. Internal usage within an organization is totally free and not subject to any conditions. There is no such thing as 'internal distribution' that would restrict the usage of your code by requiring it to be GPLed. Connecting to a remote service that runs MariaDB (or any other GPL software) in the background is also free. For internal programs for which you own all the copyright(s), there is essentially no risk in using GPL software. The argument you can use in your defense is that if the software became GPL as part of the distribution, you as the copyright holder could immediately revert your part back to its original copyright. No one has the right to require you to reveal or redistribute your code to the outside of your organization even if you would have distributed it internally linked with GPL software! If your lawyers are concerned about distributions of software linked with GPL libraries between different legal entities within your organization, you can solve this by distributing your components and the GPL software separately, and have your other entity combining them. You can also switch to use the new LGPL client libraries. The use you have described in your question clearly falls into this case, and the presence of this FAQ item clearly demonstrates that the MariaDB developers intended to allow you to do this. The Free Software Foundation (the people who wrote the GPL) agree with this position for both unmodified copies and derivative works. Technically, you don't need a license to "use" a piece of software at all, assuming you have lawfully obtained it. But you're concerned about the possibility of creating a derivative work, for which a license is required. Fortunately, the GPL doesn't care about derivative works so long as they are not distributed. | 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. |
GDPR/right of erasure and online marketplaces/payment platforms I am in the early stages of designing an online marketplace platform for professional services. In the context of specifying what happens when a user hits the "delete account" button, I am considering the following scenario: User receives services from a provider User receives services from a provider User deletes their account and initiates a request for erasure under GDPR Provider now has no way of contacting the client either on- or off-platform to pursue their money. Is the situation as I see it possible? Would I have the right of passing along the info to the provider under these circumstances? | The provider has a legitimate interest in the data subjects data, and therefore they can override the right of deletion. See this example from the UK's Information Commissioners Office: A finance company is unable to locate a customer who has stopped making payments under a hire purchase agreement. The customer has moved house without notifying the finance company of their new address. The finance company wants to engage a debt collection agency to find the customer and seek repayment of the debt. It wants to disclose the customer’s personal data to the agency for this purpose. The finance company has a legitimate interest in recovering the debt it is owed and in order to achieve this purpose it is necessary for them to use a debt collection agency to track down the customer for payment owed. The finance company considers the balancing test and concludes that it is reasonable for its customers to expect that they will take steps to seek payment of outstanding debts. It is clear that the interests of the customer are likely to differ from those of the finance company in this situation, as it may suit the customer to evade paying their outstanding debt. However, the legitimate interest in passing the personal data to a debt collection agency in these circumstances would not be overridden by the interests of the customer. The balance would be in favour of the finance company. Article 17 of the GDPR, the "Right to be forgotten", says this: The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: A) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; B) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing; C) the data subject objects to the processing pursuant to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2); In your example, it's obvious that the personal data is still necessary for performance of the contract (Art 6(1)(b)) such as collecting payment, or for fulfilling legal obligations (Art 6(1)(c), Art 17(3)(b)) such as the obligation to keep financial records. Thus, there continues to be a legal basis for processing/keeping the data and rejecting the erasure request in whole or in part. Things are slightly different when the legal basis for this processing was consent (Art 6(1)(a)) or a legitimate interest (Art 6(1)(f)). Consent can always be withdrawn, but this kind of data collection is not typically based on consent. You can sometimes object to processing under a legitimate interest (see Art 21) but that doesn't work when the data controller has overriding legitimate grounds to continue processing. Such overriding grounds might be the legitimate interest to pursue the debt, and Art 21(1) and Art 17(3)(e) explicitly call out the “establishment, exercise or defence of legal claims” as overriding grounds. So that covers requests under A, B and C. Things like legal basis and erasure/objection must be analyzed on a per-purpose basis, so it is possible that you could get a partial erasure, such as erasing information that's only necessary for marketing (compare also objection per Art 21(2)). But its quite clear to me that a data subject cannot get out of paying a bill by using the GDPR. | Yes, it triggers the GDPR obligations Considerations: Can you surely identify those residing in Europe? In that case you should ask them to sign up again and confirm the consent. A lot of mailing lists are doing just that. Did they previously give consent and you can document it? If so, then you can argue that you have the required consent. Do you have business in Europe? If not then I don't think they would bother to go after you. You could just walk away from the fine. What other personal informastion are you storing? If you know who reside in Europe then you already have more info than just the email. The email address itself wouldn't be much of a documentation issue, SAR or Portability task. | Given a large database of email addresses that you can't prove have given consent to receive email, the only legal thing to do with it, is to (securely) delete it. (I am going to switch your question about a larger company to a bank: in the UK, big pharma is forbidden from advertising to individuals.) In principle the rules are the same for a huge bank and everything down to a self-employed plumber. In practice the plumber will be told "don't do that again" rather than fined. This case was treated under the Data Protection Act, which has a maximum fine of £500,000 – so a big bank would probably have been fined more, but not necessarily much more. Under GDPR, fines are related to turnover, so the fine would be a lot bigger for a large bank. The incident is a year old now. Details here. | Doing this is OK according to the GDPR and other European laws. The relevant bit is GDPRs rules for Lawfulness of processing, and in particular Article 6 (1)b, which says that it is legal to do this if processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; In your particular case, signing up for using your app is "entering into a contract" and it is the data subject who has requested to use your app that is subject to this processing. | From a German perspective, it would be absolutely normal and expected that you're providing identity & contact information publicly. Per §5 TMG (Impressumspflicht / Anbieterkennzeichnung) this is required for German tele-media offerings, such as websites or email providers, even if non-commercial. Whereas for you as an upstanding and diligent email provider an abuse@... address should be enough, the German context expects a street address where you could be served with a lawsuit… There absolutely are privacy and free speech issues with this compelled self-doxxing. But by running an email service, you're not just acting as a private person. Your privacy interests and the transparency and security interests of other people have to be balanced. Now since you are not in Germany, the TMG does not apply to you. You have no legal obligation to provide this information. However, the ISP also has no legal obligation to to deliver your email. The ISP does have an obligation to apply appropriate organizational and technical safety measures. It seems that one organizational measure they have found appropriate is that they will only deliver emails from providers that provide public contact information, as would be the norm in Germany. I am not entirely sure how the GDPR applies here. The GDPR doesn't really allow or prohibit disclosures of personal data, it just requires that every purpose of processing for personal data has a legal bases per GDPR Art 6. One such legal basis is a legitimate interest, which boils down to a balancing test between your rights and freedoms and other people's interests. I'm also not sure if the contact information should be classified as personal data in this context, because the contact info primarily relates to your role as an email provider. I'm also not sure if the ISP is processing your personal data in the sense of the GDPR when they merely require you to publish it on your own site. They would be processing it as soon as they scrape, store, or otherwise use this info. | However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? It is unlikely that the EU will be able to enforce financial penalties against a company with no presence in the EU. But they could for example block your website in the EU, depriving you of your EU user base. The actual measures that they could or would take against such a company are still unclear, since the GDPR is quite new, and there has been no action under the GDPR against foreign companies. I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. The governing law clause in a contract identifies the law that will be used to interpret the contract and to resolve any disputes arising from the contract. The law identified in the clause does not become the sole law governing every aspect of the relationship between the parties, however. For example, a business in New Jersey could have a contract with a client in New York with a clause specifying New Jersey law as the governing law of the contract. But that does not mean that New York's consumer protection law doesn't apply to the transaction. | There is nothing in the GDPR requiring you to collect individual personally identifiable information. If the website has no need, and the website owner no desire, to collect such information, there is no requirement to do so. The GDPR requires that if such information is collected, that there is a lawful basis, and that it be handled appropriately and stored securely, and deleted when there is no longer a need to retain it, or on a proper request. If no such information is collected in the first place, all the rules about how to handle it do not apply. It is possible that some law of an individual country in the EU might mandate collection of some particular information, but I have not heard of any such requirement. | GDPR definitely applies. Your scenario seems to raise two questions: What is the legal basis for processing? Are the security measures appropriate? Legal basis Every processing activity of personal data requires a legal basis. Most well-known is consent, but there are six categories in Art 6(1) GDPR including legitimate interests and necessity for performing a contract with the data subject. Conditions on consent are laid out in Art 7 GDPR. You say that data subjects “explicitly agree to the website's privacy policy and GDPR”. The GDPR does not generally expect “agreement” to a privacy policy, as information per Art 13 is an unilateral notice. Such general agreement also cannot constitute valid consent. In the context of certifications, the legal basis would likely be necessity for performing a contract with the data subject: You were contracted to provide this validation service to the data subjects. You should however make it clear which information will be displayed on the validation page (other than a valid/not valid) response. For example, I am concerned that showing the email address would not be strictly necessary for providing the validation service. You should also consider whether this validation service is a core component of your certification service, or whether there should be an opt-in or opt-out here. Security Measures The GDPR requires that you implement appropriate security measures, “taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms” of the data subjects (see Art 32 GDPR). This gives you a lot of leeway to determine what measures are appropriate, but also criteria that you must consider in your determination. A number of security measures are explicitly suggested and must also be considered: pseudonymization and encryption ensuring confidentiality, integrity, availability, and resilience of your systems ability to restore the service (e.g. backups) processes for regularly testing and evaluating your measures Aside from generic IT security measures like backups and providing the service over a HTTPS connection, I would be concerned about “insecure direct object reference” style attacks on the database. If I know that certification no 1234 exists, I could try to get the information for other numbers like no 1233 and so on. This would leak personal data. Basic defenses could include requiring additional information such as the data subject's name to be provided, or using anti-bot measures such as captchas and rate limits. However, the real solution is to avoid sequential IDs, and to generate sufficiently large tokens with a cryptographically secure random number generator. Instead of a “certification number”, it would be better to view this as a “validation code”. |
Are terms of service legal contracts? Are ToS considered contracts in and of themselves, enforceable under contract/civil law? Generally I'm talking about the Common Law systems in the major regions (UK, North America and Oceania). Anything that applies to (majority of) Europe would be fine too. | Providing they meet the basic requirements (see What is a contract and what is required for them to be valid?) then they are binding contracts. Consideration is not an issue: the site provides the content, the user provides eyeballs on it. Consent is the major stumbling block. Online Terms of Service are either presented as browsewrap or clickwrap or sign-up wrap. A browsewrap provides notice of the terms of service but there is no specific user assent to them. A clickwrap requires the user to check a box specifically about agreeing to the terms (with or without user registration). A sign-up wrap presents user registration with a "Sign up" and provides notice to the terms at the point of service but doesn't have a check button specifically for the terms. As an example, Stack Exchange provides two types of wrap. For the casual user, there is a Legal link at the bottom of the page - a browsewrap. If you sign-up, you go to a page that says "By clicking "Sign up", you agree to our terms of service, ..." - a sign-up wrap. Whether a Terms of Service is an enforcable contract depends on whether the user provided notice, whether the user gave consent and whether enforcing the agreement is conscionable. Clickwraps and sign-up wraps have the advantage over browsewraps in the first two of these. Assuming that the contract terms are unremarkable (i.e. they are within the range of "normal" for that type of contract) a clickwrap will normally create an enforcable contract - Forrest v Verizon and Motise v America Online being the relevant case law. Browsewraps are more problematic: Specht v Netscape said no contract but where the browsewrap is shown prominently and repeatedly they can form an enforceable contract - Hubbert v Dell and Cairo v CrossMedia Services. Zaltz v Jdate was a sign-up wrap and did create an enforceable contract. All of these turn on the facts of how the information was was presented to the user. For example, in Meyer v Kalanick the Second Circuit said: Where there is no evidence that the offeree had actual notice of the terms of the agreement, the offeree will still be bound by the agreement if a reasonably prudent user would be on inquiry notice of the terms.[sic] So, in general, Terms of Service are enforcable as a contract if a reasonably prudent user could, on inquiry (e.g. by clicking a link), make themselves aware of the terms. This also explains why skrinkwraps (when software came on actual physical media in a shrink-wrapped box with the terms inside) were not enforcable - a reasonably prudent user could not inform themselves of the terms without unwrapping a product they didn't yet own. | No enforceable contract can contain illegal clauses and work Contracts can not remove some rights and never can bypass obligations. Talking to the police at times is a requirement by law, as is taking to the labor board. Responding to a subpoena is legally forced by the court. An NDA might limit the amount what you can say, and a contract might limit who you can sue, but can not ban you from suing at all. In germany, a contract that tries to curtail such requirements would be Sittenwidrig and make all clauses that try to limit the rights fully Void and nill ab initio - in fact, it can be used as evidence against the drafting party that they tried to do so. So to stay legal and keep the clause working in the limited fashion where it is not demanded, the clause cuts the contract to explicitly exclude such situations. | Here is a substantial collection of interpretive canons; this article discusses rules vs. canons. This article discusses contract interpretation from both the perspectives of drafting and litigating. These are all from the perspective of common law systems. This article (in English) and this chapter (English, paywall) reminds us that French contract law is different, to which I would add this which focuses on the French subjective theory of contracts – starkly distinct from the common law theory. This page (en français) will probably be of most interest to you. The 2016 modification to the civil code added art. 1190 (and other articles) which says Dans le doute, le contrat de gré à gré s'interprète contre le créancier et en faveur du débiteur, et le contrat d'adhésion contre celui qui l'a proposé which is contra proferentem. The Latin name is not officially assigned to this law, and being a new addition to French law, it's too early to tell if it will be so named in French legal practice. | Yes. The formation of a contract requires (among other things) that the parties intend to be legally bound. Their sending the offer from a corporate email address shows this. You replying in the same way shows your intention. Signatures are optional. Consider, verbal contracts are binding; how do you sign those? | If two parties agree to the terms of an exchange, then there exists an enforceable contract. A signature is not needed to create a contract. However, an intent to negotiate a contract is not, per se, a contract. Absent some specific and explicit measures (which for major deals may be codified in an MOU or LOI that itself contains contractual terms), if you can't reach an agreement on terms then there is no contract. It's up to the particulars of "the verbal agreement to start the hiring process" whether an agreement on exchange has been reached, or merely proposed. E.g., "You and I agree that I will pay you $X in exchange for Y due Z" is a contract. "You and I agree that we'd like to work together, and we'll hammer out the terms X, Y, and Z by the end of the week" is merely a proposal to contract, not an actual contract. Of course, this doesn't mean you're immune to liability for failing to reach a contract in this hypothetical: you can always be sued! | Yes. This type of contract is called a license. Lawyers write them. | Variations of contracts must be consented to by all parties. This means that if the company sent your friend varied terms, it would have included means by which she would have consented - this may be by continuing to use a service. You cannot unilaterally change the terms of a contract. You could try to charge the company PoS terminal storage fees, but it's highly unlikely to be enforceable if they don't agree to it. In theory if they are aware of the change and they accept them in some way then they are bound to the terms just as she would be, even if they later claimed that they were not aware of them. There is some precedent - in Russia - for this with a bank and it made the news some time ago. There's plenty of cases in which people who don't read EULAs or loan contracts thoroughly are still forced to honour their obligations to their creditors under them. | 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. |
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