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What constitutes voluntary termination of employment? I have a clause in my contract that reads as follows: "If you voluntarily terminate your employment prior to 12 months following your hire date, your bonus will be due immediately" If I give my two weeks notice 5 days before my first 12 months at the company are up, and my company fires me the next day, could they make a realistic claim that I had voluntarily terminated my contract before the year was over? I doubt they could make me pay the bonus since this seems non-voluntary, but would appreciate another perspective. I am employed in California. | could they make a realistic claim that I had voluntarily terminated my contract before the year was over? The employer's act would forfeit its entitlement to reimbursement of bonus. The clause clearly indicates that the triggering event is termination, not the anticipatory notification thereof. Furthermore, the employer's act would be a breach of the [contract law] covenant of good faith and fair dealing. That would be in stark contrast with your compliance with, and/or kindness in, giving a two-week notice. The employer's termination of your employment seems improper in equity insofar as it was aware of your notice and thus took advantage thereof. | 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. | Quitting before the start date: is the non compete enforceable? The non-compete is unenforceable unless the employer has provided you with material information that you can use to the detriment of the employer. Even in that case, the non-compete as outlined in your description seemingly exceeds the legitimate interests of the employer (see art. 2089 of the Civil Code of Québec). This means that the non-compete clause would be curtailed in court because the employer cannot prove that his business (or market share) encompasses the area depicted in the clause. The reason of being of non-compete clauses is to protect the employer from a potential misuse of information the employee obtained pursuant to his employment, such as trade secrets and information about clients. The fact that you are a fresh graduate suggests that you are dealing with just some typical intermediary who really has no "trade secrets" and who is not providing you with key information, let alone for a job that is scheduled to start five months later. Non-compete clauses that are overly broad contravene public policy in that they would singlehandedly exclude civilians from the labor market and disproportionately impair free trade. | A contract is terminated by performance when all parties have completed their obligations. So, when you have delivered and they have paid and any other obligations incidental to that have been completed (such as the expiry of any warranty or guarantee) then the contract has ended. There are other ways of terminating a contract but they are (hopefully) not relevant here. What you have in your contract is not an end date but a date by which you were obliged to complete one of your obligations. Not delivering by that date is technically a breach of the contract which would entitle the other party to sue. However, there is a mechanism in the contract for varying the date for delivery which you have done and the client has agreed to. Note that there is an implicit term that you will exercise any powers you have under the contract (such as extending the delivery time at your "sole discretion") in good faith - if your client rejected your proposed revision and sued, you would have to demonstrate that the revised date was reasonable in the circumstances. You should not unilaterally materially amend a written document that records a contract - doing so entitles the other party to terminate the contract. | You probably would not be "obligated" to do anything. However your employer also would not be "obligated" to continue employment. If you agreed to something verbally, that is a contract. Verbal contracts can be difficult to enforce, but in this case the employer does not need to enforce it but rather take the easier solution of terminating your employment. | 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 | It is not illegal to treat the employees differently. As long as nobody is being paid for less than the time worked, this is legal. Treating employees differently because of protected characteristics is unlawful discrimination. However, the duration you have worked there is not a protected characteristic. It is perfectly legal for the employer not to mandate new employees clock in and out. It would even be legal (if not a great idea) to hire new employees for twice as much. | At Will Employment - In General An "at will" employee in the U.S. can be fired at any time for any reason without any prior notice or warning. Outside a union shop or a civil service employment situation, even an illegal reason for firing does not give you the right to be reinstated in your job - instead it gives you a right to sue for money damages. Unemployment Benefits and Employment References If you are fired for good cause (or you quit in a situation that is not a constructive termination), you are not entitled to unemployment benefits. If you are fired without cause particular to your conduct (e.g. you are laid off in the employer's reduction in the size of the employer's labor force), or your are fired for a reason that is not good cause (e.g. you are fire because the boss is annoyed because you are such a goody two shoes that you always show up to work on time), you may be entitled to unemployment benefits based upon your term of service and earnings (short time employees are often not entitled to unemployment benefits no matter what). If you apply for unemployment benefits because you assert that you were fired without good cause, and the employer believes you were fired for good cause, the employer can dispute that finding in a summary administrative hearing. Employers fight awards of unemployment benefits for employees who are fired rather than laid off, because it affects the employer's unemployment insurance rates (and because they care, for non-economic reasons, if the integrity of their stated reasons for firing someone are not believed, or if their reasons for firing someone are not considered to be legitimate grounds for termination by a government agency). Even if you are entitled to unemployment benefits, these benefits are much smaller than your regular pay, and generally last less long than the period for which you were employed. A formula or calculator should appear on the Texas Workforce Commission Website. I assume when you say that "They put a few fake tags on me" that this means that they stated reasons that would be valid "for cause" reasons for termination and you dispute those reasons apply to you, but please clarify if I am mistaken. If that is the case, it is likely that you would have to fight for any unemployment benefits you are otherwise entitled to in an administrative hearing as the company is likely to contest your claim that you were not fired for good cause. This also means that if you seek new employment that they will give you a bad reference to someone who inquires about your employment (although many HR departments are afraid to do that for fear of defamation liability and will only confirm the dates of your employment and your position). Wrongful Termination Lawsuits Separate and apart from unemployment benefits, if you are fired, not just without cause, but for an illegal reasons (e.g. race, sex, and select statutory prohibited reasons), you may bring a wrongful termination lawsuit. Some of those reasons (firings related to discrimination by a private sector employer) require you to file an EEOC complaint and have it investigated by them first, other of those reasons (mostly whistle blowing statutes and breaches of written employment contracts that don't allow for termination of employment without cause) allow you to immediately bring suit for wrongful termination. The legal status of firing someone because you complained about another employee's ethical violation depends upon the exact nature of the ethical violation. For example, a U.S. Supreme Court case decided this month (i.e. February/March 2018) held that whistle blower protections under U.S. securities laws apply to people who report securities fraud to the SEC, but not to people who report securities fraud to a supervisor in the company. "My fellow employee was a lying asshole who acted unprofessionally (in non-technical sense of the word), and I complained about this conduct to my supervisor and the employer didn't care" standing alone, would not normally constitute conduct that is covered by a whistle blowing statute that could allow you to bring a lawsuit for wrongful termination of employment, although it might constitute a constructive termination for bad cause by an employer (if you quit) or termination for bad cause by an employer (if you were fired) for unemployment insurance purposes. The legal theory behind the amount of damages that can be awarded in a wrongful termination lawsuit is a bit obscure. As a rule of thumb, six months wages is a pretty typical settlement amount in a wrongful termination case prior to a determination by a court of employer liability. At trial, there is wide variation in what juries award in wrongful termination lawsuits involving similar facts. Sometimes the award is minimal even when the jury finds that the employer wrongfully fired you, and sometimes the award is very substantial, amounting to many years of lost income in amount. Contractual Payment Obligations Generally speaking, unless a written contract provides otherwise, you have no obligation to return a hiring bonus and the employer has a contractual duty (and probably a statutory one as well) to pay you through the date of termination without deduction for a hiring bonus paid. This includes any amounts, including bonuses, that the employer was obligated to pay you, although proving an entitlement to a bonus can be difficult unless that standard for receiving one is clearly defined and you clearly met those standards as a factual matter. Sometimes, you can even win a breach of contract award for a bonus that was not yet fully earned if the only reason that the bonus was not awarded was the employer's bad faith conduct. You could sue to collect unpaid wages in a Justice Court (the limited jurisdiction court for small claims in Texas) if necessary, if the amount you are claiming is under $10,000. If you have a claim for unpaid wages in a larger amount or also have other damages, you would need to bring suit in the appropriate county court or district court, depending upon the amount claimed. |
How can I inquire about some one else's border crossing history in Canada? Googling about accessing information about traveling and border crossing history in Canada, I could only find information about how can one, access the information about SELF history of border crossings. What I want is to know IF a criminal individual is or is not in Canada. His country of origin in which he has been proven guilty and has escaped from is Iran. Thanks in advance. | Without this person's consent, you can't. https://www.cbsa-asfc.gc.ca/agency-agence/reports-rapports/pia-efvp/atip-aiprp/req-dem-info-eng.html Requests for personal information that is not the requester's must include signed, recent (less than one year old), written consent from the individual to whom the personal information belongs. In theory it might be possible to get a court order to release this information to you. I don't know under what circumstances that might be granted; I suspect it'd be very rare. But you'd have to consult a lawyer about that. If this person hasn't been convicted of anything in Canada, then presumably he still has his usual rights to privacy under Canadian law. If he's wanted on suspicion of some crime, the police might be able to access this information to help find him; but you are not the police. | In the United States, you can always choose to (try to) flee police. If the police subsequently assert that they tried to detain you, then they can choose to charge you with a number of crimes (which vary by jurisdiction). The assertion that you did not (or could not) in fact hear or perceive a lawful order to stop is a defense that you could raise in response to such charges. It is up to the triers of fact to determine whether, given the specifics of the case, they accept that defense. | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. | Yes, you can use it as evidence Canada clearly requires what is called a one-party consent for recordings. Section 184(1) of the criminal code makes it a crime to "knowingly intercept a private communication." However, Section 184(2)(a), the "Saving Provision," says the prohibition "does not apply to": (a) a person who has the consent to intercept...of the originator of the private communication or of the person intended by the originator thereof to receive it." Because you: a) either originated the conversation or were the person your landlord intended to talk to; and b) gave your consent by making the recording; therefore, c) you are covered by this clause. For more details, you can read nice summaries by lawyers here and here. | The country where the accused person was arrested would extradite that person to one of the countries where the crimes had been committed. The extradition treaties or the law of the arresting country might have a rule to define how to choose which country took precedence. (Perhaps the earlier crime, or the more serious crime if they were different, or the closer ally might get priority.) Once the accused was extradited, s/he would be tried, and if convicted, sentenced. Once the sentence was completed, that person would be turned over to the second country for trial and possible sentence there. Sometimes, particularly if the sentence is long, an accused will be turned over to the second country for trial soon after conviction in the first country, under an agreement that the person would be returned to serve the sentence in the first country after the trial was over, whatever the outcome, and then sent back to the second country to serve any sentence imposed there. Or the second country could choose to count time served in the first country against its sentence, but I believe that this is not usual. Consider the case of Frank Abagnale who was sought by some 12 different countries when he was arrested in France. He was convicted and served time in France, then extradited to Sweden, where he was also tried, convicted and served time. Italy had requested his extradition, but he was deported to the US, where he was also tried, convicted, and served time. | united-states "I know is it illegal for authorities to question a suspect when their lawyer isn’t present" This is not really true, at least in the US. The suspect must explicitly ask for a lawyer. Even saying "Maybe I should talk to a lawyer" (ie Davis v. U.S. (512 U.S. 453 (1994)) isn't enough, they have to say "I want a lawyer". Until they invoke the right, an officer can question all they want (provided they were informed of these rights, except for certain situations which are relatively complicated. See Miranda Rights). So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that. With or without your lawyer, this is called interrogation. You can filter your responses through a lawyer, or waive your right to a lawyer and answer directly. | Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries. | Reading some background on Stefan Molyneux (Wikipedia) would indicate that he is a (Canadian) right-wing provocateur (Merriam-Webster) and there is no legal logic to his claim that anyone involved with the migrant caravan - either as a refugee or a person giving aid - is committing an act of treason. Provocateurs - on the political left or right - seek to incite arguments and/or movements on social or political issues with emotion and not on legal frameworks or logical discussion. Provocateurs use words and phrases that can be identified as Dog-whistles (Wikipedia). Calling out "treason" and accusing one of being a traitor are examples of dog whistles. The legal reasoning against leveling calls of treason against anyone helping the caravan members are many; the migrants are not (from the U.S. Constitution:) levying war against them (the US), or in adhering to their enemies, giving them aid and comfort.... because: • None of the countries of origin of the migrants are currently in armed conflict with the U.S. • None of the migrants - alone or as a whole - are armed to engage the U.S. or are a threat to the U.S. • The refugees are easily identified as economic migrants, political refugees or those fleeing violence (domestic, communal, sectarian). • According to Refugee law (Wikipedia) and US Federal law, migrants have a right to due process at the border. • There is no clear proof of an ulterior motive or funding for the migrants in the the caravans. There could be - now or in the future - Americans or American-based aid groups helping individuals or the group as a whole with necessities with food and safety while they travel or after they arrive at the border. But the fact remains that each migrant - when and if they reach the US border - will be legally assessed individually as a migrant or refugee. The aid they may have received is really no different than what many NGOs provide who help arrange a refugees' processing through legal immigration channels, in some instances in conjunction with a US Government agency or with an arm of the United Nations. Such aid by an American is not treasonous for the legal reasoning above. |
Can I name my app using the name of a long defunct company? I am working on an app and want to name it Vidmark. Apparently, this name is the name of a long-defunct company (since 2001). Could I get into trouble using this name? | The answer is almost assuredly, no, you can't use it. Vidmark was parented as Trimark Holdings which was bought by Lionsgate in 2001. Lionsgate is still very much an active company, and has been using the Vidmark name as lately as 2017 when it released a Roku streaming channel under the "Vidmark" name. So Lionsgate is the holder of this particular trademark, and is actively using it. TESS shows that the trademark is still Live and was re-registered in 2017. | Copyright is irrelevant, because names are not protected by copyright. Trademark is relevant: a name can be protected by a trademark. "Yoda" is a registered trademark owned by Lucasfilms, a subsidiary of Disney. There is a list of goods and services where the property right is asserted, so for example you could get sued for peddling art books under this name. It just depends on what your business does. For instance, a plumbing business isn't competing with Lucasfilms w.r.t. that class of goods and services. | The example in the question is a pretty clear case of nominative use. The mark is being used to refer to, or name, the product (or service). It is not being used to sell a similar product, or anything else. No reasonable person could take it to indicate that the trademark owner has endorsed the person making the statement, nor that there is any sort of affiliation. This page from the International Trademark Association describes the concept. This concept is sometimes called "fair use" by analogy with the concept in US copyright law, but that term is not strictly accurate. It is better to simply say "nominative use" or "descriptive use". Digital Media Law's page on "Using the trademarks of others" says: As a general matter, if you are reporting on, commenting on, or criticizing a trademark owner, most ordinary consumers will not be confused about whether the company or organization is the source or sponsor of your work. You can reduce the likelihood of confusion further by avoiding a website design that looks like the trademark owner's site or resembles its product packaging, and you should never festoon your website with a company's logo (but isolated use when relevant to a discussion is OK) ... If someone threatens you with a lawsuit or sues you for trademark dilution, then a lack of consumer confusion will not help you. Here, one obvious line of defense is to argue that there is no likelihood of dilution. Federal and state dilution law protects a trademark owner against the whittling away of the distinctiveness of its famous trademark by association with other goods or services; it does not give a trademark owner the right to shut down all unflattering speech about it. If you do not associate a famous trademark with your own goods or services, then there can be no dilution (or at least that's how your argument goes). ... The nominative fair use defense protects your ability to use a trademark to refer to a trademark owner or its goods or services for purposes of reporting, commentary, criticism, and parody, as well as for comparative advertising. Courts impose three requirements on defendants who want to take advantage of the nominative fair use defense: (1) the trademark owner, product, or service in question must not be readily identifiable without use of the trademark; (2) the defendant must use only as much of the mark as is necessary to identify the trademark owner, product, or service; and (3) the defendant must do nothing that would suggest sponsorship or endorsement by the trademark owner. This defense works against trademark infringement lawsuits. The federal dilution statute, found at 15 U.S.C. § 1125(c)(3)(A), also makes nominative fair use a complete defense to trademark dilution claims. | There are two "cancellations" here. There is a contract between the customer and the company. This contract was ended. Also, as part of GDPR obligations, the data of the former customer was removed. Now the "credit" part suggests a pre-paid phone, which are often described as "no contract". Legally this is incorrect. There is a contractual obligation for the phone company to deliver phone services (typically expressed in minutes of call time, # of text messages and/or MB of data). Now the pre-paid contract with high likelihood had a clause which dealt with inactive accounts. For instance, the minutes of call time may expire after 5 years. A "credit" that has not been converted to minutes, messages, or megabytes may also expire. When this happened, the company might need to keep the customer data on their records for two more years (for legal reasons), so the 7 year period does not sound weird at all. As soon as the legal reason to retain the data has ended, the GDPR indeed states that the data should be removed. That act is not connected to the credit expiring years before. | Not only can’t you trademark it, you can’t use it The original logo is covered by copyright which belongs, prima facie, to the original artist. It doesn’t matter that they are based in Russia; Russia and the US are both signatories to the Berne Convention which means they protect each other’s copyright. That means you can only use it if it is fair use (it isn’t) or if you have the copyright owner’s permission (you don’t). Could I still use the logo I bought and trademark it in the US granted that the seller had made some revisions to the stock photo he found? Not if the seller didn’t have permission to make those changes. Creation of a derivative work is one of the exclusive rights copyright gives. The seller had changed up some parts of the stock image, this includes color scheme, orientation, and made the picture look a little low poly. See above. The original artist of the stock photo is based in Russia and as far as I can see there is no registered copyright on it and don't think they could apply for US copyright anyway. They already have copyright. They would need to register it in the US before they could sue but there is no impediment to them doing so. While I'm not sure where the seller (located in Pakistan) officially downloaded the logo, I had nothing to do with the final design of it or downloaded anything from a stock photo website myself, so I'm not sure if I'd be bounded by any terms of the stock photo website Makes no difference. Just because you didn’t steal the car, that doesn’t make it ok for you to drive it. The stock image is very niche and a bit random. Across all the websites the artist has published it on, it has about 5 or 6 downloads altogether. Not relevant at all. As far the copyright of the seller's work goes, the Fiverr terms state that buyers have all the copyright, though I don't know if this is nullified by the use of the stock image. You can’t sell something you don’t own. If the seller had no right to upload the photo (as it seems they didn’t), the terms of the website don’t matter. The true owner never agreed to those terms and isn’t bound by them. | The words "proprietary format" are important. Are you sure the format is proprietary? If it is, then it's likely protected in which case they might have grounds to sue (but that does not mean they would definetly win). If the format is not proprietary, and so long as you don't share data which is proprietary then I believe you fine. I'm not a lawyer - but I cite GIF files as an example. They were still protected by the US and some other countries until at least the late 90s and there were various threats to open source linux companies who shared code that used the file format. I'm not aware of anything other than threats and never heard of any company being sued, let alone winning or losing. Another example that comes to mind is the RedHat ISO format. My understanding is RedHat could not stop anyone from sharing open source, but they could prevent folks from sharing the format they assembled and shared the open source. Again, I am not sure if it was ever tested in any court of law anywhere. | 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. | Generally speaking, trademark law does not allow to reserve a trademark for future use for an extended period of time (like five years), without using it. A trademark arises from use in commerce or imminent intended future use in commerce. |
Can a screenshot from a Youtube (standard license) video be used on Wikipedia? Regarding images, Wikipedia requires either the approval of the owner or to have a license which allows free usage. Does the "Standard Youtube License" allow to use a screenshot or "frame capture" of a video on Wikipedia? If not, would the approval from the creator be enough? | The "Standard Youtube License" or TOS reads You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. That stipulates no "free usage" and as such, you cannot use a screenshot ("Content") without permission or license from the copyright owner anywhere in your own work or on a platform such as Wikipedia that requires permissions from the copyright owner. You are legally OK with (preferably written) approval and license from the creator for use of a screenshot on Wikipedia, because such an written agreement will satisfy Wikipedia's requirement of owner approval for the use of another creator's work on Wikipedia and gives you written permission and license to use the work on Wikipedia. Simply contact the copyright owner and ask for permission. If you do not have the owner's permission and still use a screenshot, and are confronted with copyright infringement by the owner or Wikipedia, your use of a screenshot may fall under Fair use. The important qualifier is may. You being able to prevail with a Fair use defense - worst case, if taken to court, or at very least, Wikipedia taking down the screenshot under a DMCA request - is not guaranteed, because a judge would make that decision, based on the evidence of the usage and their determination if, in fact, a screenshot is Fair use. Fair use (Chapter 1 - Circular 92 | U.S. Copyright Office) stipulates that usage is legally permissible when (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole is not considered to be substantial enough is an infringement of copyright of the whole work. Who determines what is what is "substantial enough"? A court. The court could take into account (4) the effect of the use upon the potential market for or value of the copyrighted work. in determining your usage is Fair use, or damages if the court rules against you. You do risk copyright infringement without clear permission from the copyright owner, and you risk Wikipedia being send a DMCA takedown notice. Whether or not you are the subject of a copyright infringement lawsuit is up to the copyright owner, and if that happens, whether you prevail is up to the court. | First, I don't know what "Sir is" means - I assume it is a typo of "sue us" and answer on that basis. Also, you don't tell us where you are and local law differs - I will assume US law. They can't sue you successfully - that's not how the "Online Copyright Infringement Liability Limitation Act" works. The way it works is: You give the "online service provider" (YouTube) a notice of the claimed infringement that complies with section 512. YouTube must expeditiously remove or disable access to the allegedly infringing material and take reasonable steps to promptly notify the alleged infringer of the action. The alleged infringer then has the right to object to the takedown. If they do, you have 14 days to bring a lawsuit in the district court alleging breach of copyright: If you don't then YouTube will restore the material - essentially you have given up your claim that the material infringes your copyright, If you do then the court will decide if the material does or does not breach copyright. The alleged infringer can raise a fair use defense if they like and they may or may not be right. If you win, you get damages, if you lose, you pay damages. In practice, you and the alleged infringer may opt for an out of court settlement instead. | It's not illegal to say things in your profile. SE requires you to license your content to them on a non-exclusive basis pursuant to CC BY-SA 4.0. "Non-exclusive" means that you can also license the material to others on some other basis, e.g. CC0. In that case, a person who uses your material can rely on the other license that you granted. If SE wanted to, it could prohibit putting licenses in a user profile, in which case you would have to promulgate your more generous license elsewhere. | This would likely be considered a derivative work. You would need permission from the copyright holder to make it, especially if you intend to distribute it for profit. | 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. | You can't You agreed: by submitting Materials in any form to the Company, in addition to other provisions of the Terms, you automatically grant Company a royalty-free, world-wide, irrevocable, non-exclusive, and assignable right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, transmit, distribute, publicly display and publicly perform such Materials for the purpose of displaying and promoting the Materials on any website operated by, and in any related marketing materials produced by, the Company and its affiliates. They can keep and use your data forever and give it to whoever they want. The clause you quote doesn't alter that. All it says is that once a year, if you ask, they will tell you what information they shared and with whom. If they feel like it they will tell you how to get the information deleted. | The rule you are alluding to with respect to a television set is called the "first sale doctrine" which basically prohibits copyright and trademark owners from limiting the ability of a buyer of a good (like a CD or authorized logo T-Shirt) protected by copyright or trademark, from limiting further sales of that good (or the manner in which the good is used by its new owner) after a first retail sale of the good with copyright or trademark protections. This doctrine was derived from an old common law rule that invalidated "restraints on alienation" of property other than intellectual property on public policy grounds, and like the "restrain on alienation" rule for tangible property, the first sale doctrine that applies to intellectual property was also (at least originally) a court created common law rule. But Minecraft isn't, conceptually, a good. It is a continuing service provided over the Internet, and firms that provide continuing services on a licensed basis, as Minecraft does, can impose terms of service (a.k.a. an "end user license agreement" a.k.a. EULA) which must be complied with in order for users to be allowed to continue to utilize the service. So, its prohibition on exchanges of things of real world value for things of game value, except as the terms of service authorize, is permitted. A user of Minecraft is more analogous legally to someone skating at an ice rink than to someone who buys a CD or book. If you buy a ticket to skate at an ice rink, the people granting you the license to use the ice rink have the right to set rules governing how you utilize that service, and to terminate your license if you don't follow the rules (e.g. by skating in the wrong direction at the wrong time). Indeed, a ticket to an event is also known in legal parlance as a form of "license" just like a EULA, and licenses to use real property are the origin of the body of law that now governs the licensing of intangible intellectual property. A Minecraft license isn't something that you own (even if you have a license of unlimited duration), it is a qualified and limited right to use something that someone else owns, that you aren't allowed to purchase, but you are allowed to use on the owner's terms. How can they enforce servers to follow that rule if the server's are not using Mojang's proprietary software. The EULA or TOS obligation in the Minecraft business model is enforceable because Minecraft isn't in the business of selling proprietary software, even though it does do that. Minecraft is in the business of licensing access to data and online resources. The EULA regulates your access to the data on servers, and the computing power of those servers, not your ownership of an app which facilitates your use of the licensed services. And, while there are various contractual remedies for violating a EULA, the most basic one is a self-help remedy: to cut you off from your ability to use the service if you violate the owner's rules. Indeed, at least heuristically, the easiest way to distinguish an intellectual property good, which is subject to the first sale doctrine, from an intellectual property service, which can be licensed pursuant to a EULA, is whether, as a practical matter, the firm distributing the intellectual property has a practical ability to deny you service going forward without resort to the courts. If the owner of the intellectual property has no practical ability to do that, the intellectual property being distributed will probably be classified as a good and be subject to the first sale doctrine. But, if the owner of the intellectual property has the practical ability to cut you off from the intellectual property being distributed without resort to the courts, the intellectual property being distributed will probably be classified as a service, which is not subject to the first sale doctrine and may be licensed. | No, the musical composition itself (i.e., what you might express tangibly in sheet music) has copyright distinct from the copyright that exists on Led Zepplin's recording of the song. Your new cover will still be a derivative work of the musical composition. When you record a cover of a copyrighted song, you must get permission from the composer (or current copyright holder of the composition). In the United States, however, you can compel the copyright holder to grant you license under 17 USC §115. Under a compulsory license, you pay a fixed fee per copy of the cover that you distribute (currently 9.1 cents), and the copyright holder must allow you to distribute those copies. See the circular Compulsory License for Making and Distributing Phonorecords from the U.S. Copyright Office. I am not aware of other countries that have a similar compulsory license scheme, so in those jurisdictions, you would need to negotiate a license with the publisher or an intermediary agency they use. However, even if you did get a compulsory license to distribute your cover song, you must get permission to synchronize the song with a video. The American Society of Composers, Authors and Publishers describes the copyright holder's exclusive synchronization right: A synchronization or "synch" right involves the use of a recording of musical work in audio-visual form: for example as part of a motion picture, television program, commercial announcement, music video or other videotape. Often, the music is "synchronized" or recorded in timed relation with the visual images. Since the synchronization right cannot be acquired under a compulsory license, you will need to have the publisher (or whoever the copyright holder is) agree to license the synchronization right to you under whatever terms the two of you can agree upon. |
Does this Restrictive Covenant apply to new purchasers? I am considering buying a house. There's a restrictive covenant attached to it that begins as follows (emphasis mine, blanks contain the original husband and wife who were the developers): _____ and ______ (developers) do hereby inact the following reservations and restrictive covenants on the subdivision as hereinafter defined. The reservations and restrictive covenants herinafter set out are to run with the land and shall be binding on all parties who acquire an interest in said subdivision through the developer. If the owner(s) of any lot(s) in the subdivision, or their heirs or assigns, shall violate any of the covenants hereinafter set out, it shall be lawful for any other person owning real property situated in said subdivisions to prosecute any proceedings at law or in equity against the person or persons violating any of such covenants, and to either prevent them from doing so or to recover damages for such violations, or both. Later, it adds If the developer shall fail to approve or disapprove the plans and specifications as submitted withing [SIC] thirty (30) days after written request thereof, then such approval shall not be required providing that no building or other structure shall be erected, which violates any of the covenants herein contained. Under a Definitions section, it says, A. "DEVELOPER" means: (1) ____ and _____ or the survivor thereof; (2) That individual(s) or entity appointed in writing by developer and filed with the Register of Deeds of [County] as successor developer, which shall include any individual(s) or entity who receives by sale, transfer, inheritance, or assignment the entire unsold interest of developer in the subdivision other than individual purchasers of lot(s) from the developer. A number of the covenants require the lot owner to obtain written approval from the developer before proceeding with a project. The original named developers passed away decades ago. I do not know if their company (if any) still exists, or if anyone was appointed as their successor. While the document specifically allows neighbors to sue for violating the covenant, it is unclear how one could ask for approval from a deceased or non-existent developer. (I need to figure that out, too.) My Question If I were to purchase the property from the current lot owner, and if the current lot owner isn't the developer, it would seem to me that the above document would no longer apply to me because I didn't "acquire an interest in said subdivision through the developer". In other words, I would not be bound by any of the terms contained in it. Note: most similar agreements I've found do not include that clause. Is this a correct interpretation? Why/why not? | Every lot on the subdivision is and always will be acquired “through the Developer” Unless the developer still owns it. Somebody is the heir or assignee of the Developer - that’s who you need to seek approval from. Even if the Developer was at some point a company that got liquidated, the right of being the Developer would transfer to the creditors of that company. | This will depend on the exact wording of the will. If the will is well-drawn, it will provide alternative recipients in case the primary recipient of a bequest dies before the testator (will-maker) does. But as a general rule, if A makes a will leaving particular property to B, but B dies before A does, that bequest is void. If the will specifies an alternate recipient, the property goes to the alternate. If not, or if all specified alternates die before the testator does, the property becomes part of the residual estate of the testator. (The residual estate is that part which is not subject to a specific bequest.) The testator can specify a line of descent for a bequest: "I leave my house to Joan and her heirs". In that case, if Joan died before the testator, the house would go to whatever person or persons inherit from Joan. This was once a somewhat common form of bequest, but now is much less common. A will normally includes language leaving the residual estate to some person (or several people) or some entity (it can be an organization, such as a church or a charity). This is often done with language such as "I leave all the rest of my estate to ..." OR "Everything not include above i leave to..." or "I give all the remainder and residue of my estate to...". The executor does not choose, but rather follows the directions of the will on who gets the residue of the estate. I am not sure what happens if the will does not name a residuary legatee, or if the person so named dies before the testator. That will depend on the specific law of the jurisdiction. In the US, this means state law, and will vary from state to state. The comment by Dale M says that assets not provided for in the will are inherited as if the person was intestate, that is, as if the person had no valid will. The law in each jurisdiction specifies exactly what rules are followed in the case of intestacy. In general this is that property goes first to the teatator's spouse and children, but if there are no living spouse and children, to more distant relatives. Eventually, if no relatives close enough can be found, property escheats, that is, goes to the government. The exact rule varies by jurisdiction -- in the US by state. | If three people inherited a house in equal shares, then a new deed should have been prepared and filed with the appropriate governmental authority (the county in most US states) before probate is closed. When that is done the authority of the executors over the house as executors has ended. However, if I understand you correctly, the two former executors are also two of the three heirs to the house. Thus they own a 2/3rds interest in the house. At least they can sell their interests without your consent, leaving you a minority owner with the purchaser owner a majority. In some jurisdictions they may be able to force a sale, paying you your share of the purchase price. But this would be because of their majority ownership, not because of their former status as executors. Addition: In some states co-owners who are joint tenants may not sell their interests without the consent of the other co-owners, but this is jnot true in North Carolina According to the site of the Hutchens Law office: ownership as tenants in common provides each party with the right to sell, gift, devise, or otherwise convey their interest in the property without the permission of the other owners. This means that the ownership interest is freely alienable or transferable. As a result, an owner may sell or give their interest in the property to anyone they want, or they may willingly or by judgment use their interest in the property to secure or satisfy a debt with a creditor. Therefore, parties entering into an agreement to purchase property as tenants in common should be aware that they may ultimately end up owning the property with a stranger. If this were to happen, there is a way out, but it may be costly. At any time, if the parties can't agree, any owner may petition the court for a partition of the property. The court could require one owner to buy another out or force the sale of the property. The court will decide the ultimate outcome based on equity. ... [I]f the intent of co-owners holding interest as joint tenants is to automatically transfer their interest at death to the survivor, the language must be on the conveying instrument as right of survivorship is not automatic with joint tenancy in North Carolina and if the language in not included, the decedent's interest will pass to his heirs. ... However, any owner has the right to convey their ownership interest during their life; and if they do, the survivorship agreement ends, and owners simply become joint tenants by operation of law. In North Carolina there seems to be little practical difference between co-owners who are tenants in common, and those who are joint tenants without a right of survivorship. But whichever form of co-ownership is chosen: tenants in common, joint tenants without a right of survivorship, or joint tenants with a right of survivorship, each of the co-owners has a right during his or her lifetime to sell, give away, or use as collateral on a loan his or her share of the property, without consulting the other co-owners. They cannot force the other co-owner(s) to sell, except by starting an action of partition in a court, when a judge would decide. An unrelated buyer might be unwilling to purchase only a 1/3 or 2/3rds interest, because the remaining co-owner(s) would still have full rights to use and occupy the house, can could sell to a different buyer. All co-owners are responsible for their proportionate shares of all expenses, including mortgage payments, repairs, and taxes. | 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. | 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. | Your framing of the issue is basically wrong. There is an exemption, which varies from state to state, from unsecured creditors (but not creditors that take the goods as collateral) in bankruptcy and in debt collection outside of bankruptcy (not always the same exemption), for tangible personal property owned by the debtor which constitutes the debtor's tools of the trade, but that varies from state to state, is a creature of state statute (and the bankruptcy code), is not universal, and is usually limited in dollar amount. Moreover, the exemption only applies when the tradesman actually owns the tools of his trade which is customary in some professions, but not automatic. It is only the case when the tradesman buys his own tools. There is no generic v. non-generic distinction. In the software field, education and the public domain can always be accessed. But, intellectual property, that can be protected, that is developed for the employer, is usually work for hire and belong to the employer. This default rule is subject to the terms of the agreements between the parties entered into contractually. | Summary: More information needed, but I have listed out some legal claims available to homeowners when they have similar concerns. There are several issues here which need elaboration before deciding if you can take legal action. The first is: "the destroyed some vegetation on my street." If the by "my street" you mean that the street is part of your property, you may sue the builders for trespass and/or damage to property. If the street isn't your property, but the vegetation is your property, you may sue them for destruction of your property. What you are probably looking for, however, is a prohibitive injunction. This is a court order forcing the builders to avoid doing something, e.g. An order forcing them to avoid using roads adjacent to your property. To obtain such an injunction you will have to prove that what they are doing is violating your rights, is somehow harmful to you or your property, or inevitably will do either of those things. One way to demonstrate this is if you can show that you have a claim under nuisance, or damage to property, or trespass. On the description you have given us, there isn't enough to say your rights are being violated, or that your property has come to harm or will come to harm because of their actions. You should also be aware of claims under nuisance. Nuisance is when someone is doing something that prevents you from "peaceful enjoyment of your land". It appears from your question that the actions of these builders have, in your mind, done this. However there are several aspects that have to be satisfied for this to amount to private nuisance: What the builder are doing must be a "continuing state of affairs." They may have annoyed you by trampling over vegetation, but if this is a "one-off" event, it is unlikely to amount to nuisance. A reasonable person must find the conduct to interfere with the enjoyment of their land. That is to say: it isn't enough that their conduct is making you unable to enjoy your land peacefully, you have to show that any reasonable person in the same situation would find this conduct unacceptable. Finally, the context of your neighbourhood matters: if the behaviour is something expected in a residential area, then it will not amount to a nuisance. For example, heavy drilling in an industrial location will not amount to a nuisance, while the same may do so in a normally quiet neighbourhood. | 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"). |
Who is responsible when an image was incorrectly published under a permissive license? Assuming the following: Alice has drawn a painting. Bob has somehow (legally) gotten a photo/copy of this painting, but does not have any additional rights. Bob then goes on to publish this image on his Creative Commons Zero blog. (Not thinking about the fact the doesn't have the permission to publish the photo under CC0) Charles finds the photo which has been clearly published under CC0 and uses it somewhere else Obviously what Bob did was wrong. There is no question about that, but under US law, what are the consequences for Charles? And who is liable for the damages Charles' causes? Bob or Charles? A friend of mine was 'Charles' in this type of situation and he resolved it with 'Alice' super nicely (Alice wrote him asking/questioning whether he had permission to use it, Charles explained where he got it and agreed straight away to pay Alice for her work, as Alice was nice enough to just ask for a very reasonable sum), but we ended up wondering whether if 'Charles' would've wanted to be an asshole, whether he could've just put the blame completely on Bob and just stopped any further infringements. The more I think about it, the more I am confused by this, as I assume Charles would probably be liable no matter what, but if that were the case then a nefarious Alice could intentionally instruct an anonymous nefarious Bob to publish all her works everywhere. | Both Bob and Charles are liable for infringement in the US. The fact that Charles had no idea that Bob was an infringer is not a defense, but it mitigates the statutory damages consequences for him. Either party can negotiate with Alice after the fact for a license, and Alice can grant either party but not the other permission to copy. The terms of the license that Alice gives Bob could either allow CCo reposting, or some more restrictive redistribution right. If the license requires a notice prohibiting further redistribution and Bob omits that notification, Bob will have breached the terms of the license in omitting the notification, so we're back to square 1. If Alice fails to specify a no-redistribution notification condition on Bob's reposting, Alice may have granted an implied license to the world, a matter which has to be determined by the courts. | Yes. The copyright owner of a work has the exclusive right to "reproduce the copyrighted work" or to make "derivative works" of it. 17 USC 106. Copyright law is older than the photocopier, and it applies to copies made by means of any technology. If your intent is to duplicate the protected work, whether you do it by tracing, photocopying, or even freehand, you are infringing that right. It is possible that you could squeeze into one of the copyright exceptions, such as fair use, but these are much narrower than people tend to assume they are (especially outside of the U.S.), and they boil down to: "Well, yes, I copied your copyrighted work, but..." The bottom line is: is it copyrighted? Did you copy it, in whole or in part? Then, unless you have a very good reason, you've infringed the copyright. Whether you do it by means of tracing paper, jellygraph, or iPhone doesn't matter. | I've found Google's filtering based on licence to not be very reliable, at least not reliable enough to trust from a practical legal perspective. Using a photo that you don't own the copyright to is a risk. You may be infringing copyright by doing so. The owner may eventually ask you to stop, or they may sue you for damages. Further, some copyright infringement is criminal 17 USC 506. In my opinion, it would be unwise to use a work commercially that you don't affirmatively know you have permission to use. | There is no such thing as "alter it by X amount and it's legal". If the original can be determined at all, it would fall under derivative work and be an infringement. https://www.copyrightservice.co.uk/copyright/copyright_myths -- See #6 and #7 And Stanford: http://fairuse.stanford.edu/2014/12/22/much-photo-need-alter-avoid-copyright-infringement-hint-cheshire-cat/ Kienitz v Sconnie Nation And the well known Shepard Fairy/Hope poster case: http://artsbeat.blogs.nytimes.com/2012/09/07/shephard-fairey-is-fined-and-sentenced-to-probation-in-hope-poster-case/?_r=0 | 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. | You have a false premise: "it offers the same conditions", and "MIT license is functionally equivalent to CC-BY". These premises are not true. CC-BY: applies to more than just software; it applies to artistic or literary work, databases, other material disclaims endorsement explicitly withholds moral rights explicitly does not license patent rights (MIT license gives anyone who obtains a copy of the software the right to use it, a patent right) prescribes the acceptable forms of attribution Those are just some of the differences. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. | 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. |
Is it illegal to enter illegally one's own country? In Né quelque part (an obscure French movie), the main character, a French citizen, is entering France illegally (on a boat with illegal immigrants). I am under the impression that a citizen cannot be refused the entrance to their country - this is apparently the case in the US (I saw a reference to the relevant law in several forums) and for France I could not find any information about that (there is plentiful for aliens). It it illegal for a citizen to enter their own country illegally (without going through an established border entry point, without proper papers, ...)? I would be interested from the perspective if international law, or French if such a law does not exist (or any other interesting case) Note: I am not challenging the fact that someone is temporarily detained for the time needed to check their nationality. I am wondering if a citizen can be prosecuted (probably afterwards, after they entered the country) for entering their country illegally. | It may very well be illegal, depending on the laws of the country. Most people have the right to enter their own country (except for practical problems, like not being able to prove you have the right) because you list your passport and/or other ID). But it may be illegal to enter outside official border crossings, for example. Or illegal to enter without having the entry registered. Or soon, it might be illegal to enter the U.K. while avoiding quarantine, whether you are British or not. But it wouldn’t be the fact that you entering that’s illegal, it would be how you did it. If you are the Dutch owner of a Ferrari then entering the Netherlands on the A40 from Germany at 170mph is very, very illegal :-) | To narrow this down to a specific country, you can read about the Syria sanctions here. Sanctions under US law are against a country, and against named individuals: there are no sanctions against "Syrians". A person cannot engage in transactions in (certain) goods of Syrian origin, and you cannot invest in (businesses in) Syria. A Syrian citizen who is resident of a non-sanctioned country is not subject the the limitations that exist on Syrian citizens who are resident in Syria. However, this legal fact is not universally know, so your question does reflect an existing belief. It is entirely possible that a person who believes that there is a law of attainder against Syrian people might cause problems, but if they get advice from their legal department, they will find that also being a Syrian citizen is not an impediment to legally investing. | Can I just go to the United States and marry him anyway, and still live in Canada? Basically, yes. But, if you tell the border patrol that you are engaged or headed to your wedding when crossing the border to attend your wedding, you may be denied entry, because you no longer qualify for a tourist visa or student visa, and now need a fiancee visa to enter the U.S. This can prevent you from crossing the border for a long time while a financee visa is processed. (I've seen this happen in real life more than once when I lived in Ann Arbor, Michigan which is near the Canadian border.) Once you are married, it is perfectly legal to live in Canada, although this may lead to tough questions from U.S. or Canadian immigration officials about whether you had a bona fide marriage if you later seek to gain U.S. citizenship, or he seeks to gain Canadian citizenship based upon being married, since not living together is circumstantial evidence that you have a sham marriage. This said, immigration officials tend to be more suspicious of sham marriages when one spouse from a poor country seeks citizenship in a rich country than they are in U.S.-Canadian marriages in either direction. Immigration officials are more suspicious if you do not have children together and are less suspicious if you have children together. Do I have to report this to anyone? You need a marriage license from the state or local government as applicable where the marriage takes place and it must be returned with signatures from the officiant and a couple of witnesses within the time set forth in the license. If you change your name upon marriage, you need to change it for purposes of all of your identification documents including your passport, usually by submitting your marriage license to the appropriate officials. If you are asked by a border crossing official if you are married or engaged to be married you are required to answer truthfully, but you do not have to volunteer the information. If either of you applies for a permanent residence visa or citizenship in the other country the immigration officials of that country must be informed on the application for the visa or citizenship. | There is a regulation 31 CFR 560.419 making 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 If the work is conducted long-distance, the employee would not be coming to the US. An additional regulation is 31 CFR 560.201, that 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. which could be applicable. 50 USC 1702 says that there is no prohibition against 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 of this title, or under section 4605 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 It is not obvious how the US government will interpret "information". Following the rule noscitur a sociis, outsourcing accounting services is not clearly "information" given the instances enumerated in the law. Then we come to 31 CFR 560.206, whereby no United States person, wherever located, may engage in any transaction or dealing in or related to: (1) Goods or services of Iranian origin or owned or controlled by the Government of Iran; or (2) Goods, technology, or services for exportation, reexportation, sale or supply, directly or indirectly, to Iran or the Government of Iran. (b) For purposes of paragraph (a) of this section, the term transaction or dealing includes but is not limited to purchasing, selling, transporting, swapping, brokering, approving, financing, facilitating, or guaranteeing. An Iranian person is subject to Iranian law: I won't try to figure out if there is any Iranian law against such an arrangement, but I assume that it is legal from the Iranian side. In light of 560.206, it may be illegal under US law; however, an Iranian person is not subject to US law. The US company would be. Before giving up hope, I will point out that 560.206 starts with "Except as otherwise authorized pursuant to this part" (Part 560). There is a sort of contradiction between the prohibition in 560.201 and the one in 560.206, that the former states an exception (about information) to a general prohibition, but that exception is not stated in the later (which is about transactions). The government probably would not interpret the information exception in 506.201 as an "authorization". Instead, specific authorizations are found in Subpart E. The majority of those authorizations pertain to exporting the service of obtaining a non-immigrant visa, but also under 506.509 authorized importation of and payment for certain intellectual property services. However, what is enumerated is services pertaining to copyright and patent registration, and not the creation of IP. Bear in mind that US law is fluid and will change on Nov 4. The Office of Foreign Assets Control is authorized to grant licenses for transactions with Iran. The company that an Iranian might enter into an agreement with bears primary responsibility for navigating the legal waters, but if a company mishandles the transaction, the Iranian person may end up not being compensated for his work. Normally one would hire an attorney versed in relevant law, and there are firms that specialize in the law of Iran sanctions, but such consultations may be difficult for the ostensive Iranian contractor. | 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. | 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. | In general, you cannot contract to do anything illegal. However, ... An argument could be made that permission has been granted to, for example, enter property and remove the item. If permission has been granted, entering property and taking an item is not a crime. | 'Is it legal?' could mean one of two things. Does it break the criminal law; could I be arrested? There is no law criminalising photography or filming in a private place (assuming you're not doing something amounting to harrassment, or making something inherently illegal like child pornography). The act of filming per se is therefore not illegal in a criminal sense. However, the proprietor of a private place can ask you to stop filming or demand that you leave; if you fail to comply then you will be trespassing. Trespass is not a criminal offence (although the police will undoubtedly remove you if called). However, if your intent was to intimidate, obstruct or disrupt activity within the premises, you could be charged with Aggravated Trespass under s68 Criminal Justice and Public Order Act 1994. Could the owner, or someone else, have a civil claim against me? This is more difficult to answer. Trespass is a tort, so the owner could in theory have a claim against you if you were filming against his wishes. However, he would have to prove some measurable amount of damage, and this is why few trespass cases come to court. The occupants of the premises may be able to sue if you breach their right to privacy (Article 8 ECHR, incorporated into UK law by the Human Rights Act 1998); however, a court will balance this against your Article 10 right to freedom of expression. A court will consider all circumstances: for example, if you were filming in the toilets of a nightclub, the occupants' right to privacy may well outweigh your right to freedom of expression. A copyright owner may have a claim against you if you include their work in your film; for example, if you film inside a nightclub and substantial parts of songs are captured on your film, this may give rise to a claim. I am not a lawyer. Don't rely on free advice from strangers on the Internet. |
What can I as a citizen do to enforce a requirement to wear masks? In my city, face masks are required by emergency order in all public places with violations subject to a $300 fine. Though the vast majority of people have complied with this order (indeed they mostly complied before the order went into effect), a stubborn few refuse to wear masks. Generally calling the police about this is not effective, because the violator is long gone by the time they arrive. What can I as a citizen do about this? Can I detain the violator? Can I sue them for endangering my health and the health of others? | 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. | Since you asked two questions: No and No Does a company’s T&C or their house rules supersede law No and is asking private health status (including the request to wear a mask) an offence? No A company cannot require you to do things that are against the law but they can require you to do things that go further than the legal minimum. The UK and Spanish governments do not require you to wear a mask but they do not prohibit private organisations (like airlines) for making it a requirement to access their facilities. The law requires that they make reasonable accommodation for people with disabilities. But you don’t have a disability, you just can’t sleep with a mask on. If you had a disability you would have no trouble in getting a letter from your doctor to that effect. The contract requires them to take you from the UK to Spain: they don’t have to enable you to sleep. If you read the T&C, you will find that they can refuse to carry you if, in their reasonable opinion, you pose a hazard to the aircraft or the people aboard it. | No If you break the law you are legally responsible. Can you make it more difficult for law enforcement to find and prosecute you? Of course, that's why bank robbers wear masks. | None No law requires police to keep people apart when making statements. Doing so is good police practice. In some police organizations internal regulations or procedures may specify that officers should do so. But those are not laws. In some cases witnesses may have had a chance to confer and agree on a story before police arrive, the police cannot prevent that. The trier of fact can take into account that witnesses had a chanc to agree on a false story. | A follow-up story appears on the local ABC television station, indicating that the security guard pleaded no contest to simple assault. The fact that the security guard was convicted of a misdemeanor does not necessarily indicate that the deputy was allowed to have the gun in the IRS office, only that the security guard's response to the situation was not acceptable. I am not able to locate any firearm policy for the Lucas County, Ohio' sheriff's office. Many US law enforcement agencies have a policy that their officers carry their firearms essentially at all times, so that they can respond to unexpected incidents even when they are off duty. At the same time, owners of private property ordinarily can admit people, or not, for any reason at all. Unless the officer has an official reason for entering a property when the owner doesn't want the officer there, the officer isn't allowed to enter. It appears that in this case the officer had no official law-enforcement reason to enter. But this case doesn't involve private property, it involves federal property. A digest from the FBI states "Federal laws or regulations are not superseded by LEOSA. Qualified officers may not carry concealed weapons onto aircraft under the act. They also cannot carry firearms into federal buildings or onto federal property." | The legal question here is whether police have an enforceable power to enjoin a person from visiting a particular person or from entering a particular jurisdiction (especially the one where they have police powers). The obligation to obey police orders generally ends at matters regarding arrest, traffic orders, or crowd control. Freedom of travel is a fundamental constitutional right, along with freedom of association. That does not mean that you can go absolutely anywhere you want and do anything you want with whoever you want, but it does mean that any restriction have to be encoded in law, and such laws have to pass strict scrutiny. Any enforceable legal restrictions would have to emanate from the courts. | The same page at the ICO website also lists what an organisation should do if they refuse to comply with a request: What should we do if we refuse to comply with a request? You must inform the individual without undue delay and within one month of receipt of the request. You should inform the individual about: the reasons you are not taking action; their right to make a complaint to the ICO or another supervisory authority; and their ability to seek to enforce this right through a judicial remedy. You should also provide this information if you request a reasonable fee or need additional information to identify the individual. Even if they did not inform you about this, the last two bullet points basically list your options. You can make a complaint (Art. 77 GDPR), or go to court (Art. 79 GDPR) requesting the online retailer to comply with your request. (Or do both). You can request a compensation for damages, but it is often difficult to prove if you have suffered (non-material) damages. | The police officers themselves are covered by Qualified Immunity - to put it briefly, a government official acting in their official capacity in a discretionary act (as in, they have some discretion in whether/how they carry out the act) is immune from suit so long as they pay reasonable deference to relevant law. In the case of the police, so long as the search or seizure itself is reasonable (either because there is a warrant, or because they had probable cause), they can take appropriately destructive measures to carry out their duty. Even if the search or seizure is later found to have been unreasonable, an officer may still have Qualified Immunity unless their action violated "clearly established statutory or constitutional rights of which reasonable person would have known" (Harlow v. Fitzgerald). However, a search/seizure doesn't give the police license for arbitrary destruction, whatever they do has to be reasonably pursuant to the legal search/seizure. For example, if a suspect is barricaded in a house with a gun, they can knock down doors, windows and walls to apprehend them. On the other hand, that does not mean the officers can then break open safes to try and find evidence - once their probable cause for the entry is fulfilled (apprehending the suspect), they need to get a warrant to do more than a plain sight search of the house. Warrants will specify what items are being searched for, so even with a warrant the police have to take reasonable measures to carry it out - an example of an unreasonable measure would be to tear into walls in order to try and find a stolen bicycle. On the other hand, tearing into walls could be justified if their warrant included searching for drugs from a dealer, where it is not uncommon to hide them in the walls. States and the Federal Government enjoy Sovereign Immunity from suits in most cases. There are some exceptions, but none would apply in this case so long as the general policy of the police department was not illegal or unconstitutional. However, county and city governments do not enjoy Sovereign Immunity and state governments and the Federal Government often allow suits against them for negligence from their actors, so someone injured by unreasonable police action can usually try to recover damages from the officer's department. |
Can a U.S. citizen get into legal trouble if they tip off ICE as to the whereabouts of an illegal immigrant(s)? I would like to know if a U.S. citizen, especially for those living in California, can face criminal charges from local or state authorities if they contact ICE instead of the local police to report the whereabouts of an illegal immigrant(s). For example, say that someone is at a gas station late at night pumping gas and a truck pulls in to a gas pump next to their car. As the truck's driver is pumping gas, the person hears voices coming from inside the truck. Now say that this person just happens to have the number for ICE on their smart phone and they immediately call it and report the truck model and its license plate number. The next day, the local news shows a story about how ICE had pulled over a truck which had a lot of illegal immigrants inside of it based on an anonymous tip. Now, if an ICE agent being interviewed for this news story was to accidentally reveal the name of the person who had contacted ICE the night before, would that person face any criminal charges from local or state authorities for having contacted ICE instead of contacting the local police? Can a U.S. citizen get into legal trouble if they tip off ICE as to the whereabouts of an illegal immigrant(s)? | It is illegal to threaten to report a person for violating the law (it is illegal to threaten a person). There are laws in California that limit official cooperation with ICE investigations, therefore the police will not arrest a person for being an illegal immigrant. This is basically a limit on use of state and local resources, and the state has the power to control its purse strings. The state has no power to mandate that individuals not report a suspected or imagined violation of federal law to federal authorities, and there is no California law purporting to have that power. | Yes and no. Using deception to get someone to open the door so that you can execute a warrant is okay (United States v. Contreras-Ceballos, 999 F.2d 432). Leading a criminal to believe that you are a crime-customer (e.g. for purposes of a drug sale) and not a police officer is okay (Lewis v. United States, 385 U.S. 206), but must be limited to the purposes contemplated by the suspect and cannot turn into a general search. Lying about whether you have a warrant is not okay (Bumper v. North Carolina, 391 U.S. 543, Hadley v. Williams, 368 F.3d 747), nor is it okay to lie about the scope of a warrant (United States v. Dichiarinte, 445 F.2d 126). Misrepresenting the true purpose of entry, even when the person is identified as a government agent, negates consent (US v. Bosse, 898 F. 2d 113; United States v. Phillips, 497 F.2d 1131; United States v. Tweel, 550 F.2d 297). However, there is no requirement to be fully forthright (US v. Briley, 726 F.2d 1301) so you can gain entry saying that you "have a matter to discuss with X" even when the intent is to arrest X. In a case similar to what you describe, United States v. Wei Seng Phua, 100 F.Supp.3d 1040, FBI agents disrupted internet access and then posed as repairmen to gain access to the computer. Their efforts were wasted, as fruits of the poisonous tree. | united-states But what is that legal reason? Why would an organization not be able to state their position with respect to the issue, such as "We believe we acted correctly, but this will be decided in court"? Is there a law saying that commenting a court case is illegal? Who does this apply to? Or is this just some guideline or established advice to avoid problems (which ones)? Legal Ethics Considerations There are circumstances when commenting publicly on litigation violates the ethical rules for lawyers related to trial publicity See Rule of Professional Conduct 3.6 (the numbering system for professional conduct rules for lawyers is uniform nationally in the U.S. although the substance of the rules can differ in detail from state to state - Colorado's rule is fairly typical). Mostly this rule calls for avoiding statements that could prejudice a jury unless the other side has already done so and those statements need to be rebutted. This rule states (in its Colorado version): (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;(iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a) and Rule 3.8(f), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). Statements such as "We believe we acted correctly, but this will be decided in court" are allowed and are not terribly uncommon. But, making a comment about something that can be easily inferred from the publicly available documents filed in court provides little or no positive advantage for a litigant. Also, one doesn't have to say much to create at least a colorable Rule of Professional Conduct 3.6 issue that a mediator can raise in settlement talks, or that a judge can be forced to analyze. Even if the claim of unethical trial publicity ultimately doesn't hold water, it still muddies the waters and distracts lawyers and litigants from dealing with the substance of the dispute. The Risk That A Statement Will Be Used Against You Usually, the main concern is similar to the concern about talking to police: Anything you say can and will be used against you at trial. For example, this week former President Trump's public statement about his knowledge of classified documents, which are the subject of an ongoing federal criminal investigation of him, seriously harmed his position legally. (His statement was made quite a while ago in a semi-private forum, but at a time when the possibility of a criminal investigation still should have been on his radar screen.) In the civil rape-defamation case against him (as noted, for example, in this Law.SE answer), Trump's decision to continue to speak publicly about matters that were the subject of active litigation against him in an earlier case resulted in an extended statute of limitations and an opportunity to refile the case without having to worry about Presidential immunity from liability for statements he made while in office. It isn't just former President Trump that does things like this, but his conduct provides good textbook examples of what lawyers worry about when their clients talk about cases that are being litigated. Social media statements about pending cases by litigants routinely provide powerful evidence against them in trials. Some clients (particularly politicians and many senior executives of big and medium sized businesses, but also more ordinary people with big egos) are "forces of nature" who can't resist running their mouths, usually to their detriment, when given the least leave to do so. It is easier to teach them to say "no comment" across the board about pending litigation, than to transmit the depth of understanding necessary to comment without saying something potentially harmful. Lawyers spend many hours and sometimes days preparing their clients for depositions for a reason. Avoiding Annoyance To Opposing Counsel, Parties, And Judges Making a comment about pending litigation has the potential to aggravate opposing counsel and can emotionally influence non-lawyer opposing parties with whom a negotiated settlement will be reached 90%+ of the time (only about 1-2% of civil cases go to trial, but some are resolved by default judgments or on motion practice as opposed to by settlement). It can also irritate a judge who frequently prefers to be out of the public spotlight when necessary, even when the statements made aren't prohibited, and judges in the U.S. have lots of discretionary authority. | Yes. The meaning of "citizen" in "citizen's arrest" has nothing to do with citizenship. It just means "ordinary person" or "member of the public" — as opposed to "a law enforcement officer". | In the U.S. there is no law that requires you to ever say a word to a law enforcement officer, and lawyers generally encourage you to minimize what you communicate to them anyway. I can't think of any situation where a request for information could not be demanded in writing. As a practical matter, in some situations you will probably be subject to some extra scrutiny and inconvenience: E.g., in a stop-and-identify situation, you could hand the officer a note saying, "Please make any requests for information from me in writing." The officer may infer that you have some disability, but if he does not (or discovers you don't) he may get irritated enough to subject you to harassment for "contempt of cop". Of course, if you can understand him, you are still required to obey an officer's lawful orders no matter how they are communicated. But "speak" is not a lawful order. | Can someone be arrested for not being ‘nice’ to police? Yes. The arrest may later be declared unlawful, and the cop could later be disciplined by his boss, but if a cop wants to arrest you now for any reason they just can. Seems weird and an abuse of power to me. The available means of dealing with abuse of power have never been in excess. Could they win such a case? Yes. So could your friend. It depends on many many factors. | No. The police cannot determine if you have a lawful reason to know the details. Not their job. You can file your civil case using fictitious defendant name and then just apply for a court order to disclose who the guy actually is as part of the disclosure process. Provided that the court is satisfied you have a case, it will grant such order and the police will have to obey it. | can really anyone in Germany call the police on others without proof of anything? Anyone anywhere can call the police without proof of anything as long as they have a phone. The question is, what will the police do about it. Police in Germany are more professional and less corrupt than in many countries in the world (e.g. they are much less corrupt than police in much of the United States or police in Southern Italy or Mexico, or in much of the "third-world"). Most German police are unlikely to exercise their power unless they are genuinely deceived into thinking that you committed an actual crime. But, German cops are human too. Some German cops are bad cops and even good cops aren't perfect truth detectors or bias free. and if so what are my rights? There has to be some evidence to arrest you or prosecute you, but testimony from people who claim to be eye witnesses is a form of evidence and proof. People are routinely convicted of crimes (everywhere in the world) based solely upon the testimony of other people with no additional proof. This is usually a good rule. As a society we don't want the criminal justice system to let people who commit crimes that are witnessed by lots of truthful witnesses and testified to, to go free just because there is no non-testimonial evidence. But because people lie (or are simply mistaken about the truth) sometimes, it isn't a perfect way of determining who is guilty and who is innocent. You also have the right to lodge a complaint of criminal defamation with the police in Germany and in Germany hundreds of thousands of such cases are prosecuted by police every year. Making false accusations against you (or even just insulting you in an extremely offense manner) as they did is a minor crime in Germany. and the person I mentioned had 2 of his employees with him but I am sure and I know for a fact they are on his side and I had no witnesses with me so how can I prove I am innocent? if they agreed on making up a story against me? The possibility that people will be wrongfully arrested and wrongfully convicted of crimes because people lie and authorities believe the people who are lying is a constant risk. The best you can do is to tell your story consistently and honestly and hope that you are believed. But it is impossible to eliminate the risk that people will lie and be believed and that you will suffer the consequences, even if you are doing everything right. In the long run, you may want to avoid people who you think would lie and make false accusations around you, and to have the presence of either friendly witnesses and/or audio/visual recording at times when you are in their presence. You may also, as a long run strategy try to figure out if there was anything you could have done to prevent them from being out to get you so badly that they would make false accusations against you. While I don't want to blame the victim, and often enough, especially for example, if you are a foreigner or otherwise different in a homogeneous community some people are doing to hate you for no reason, sometimes their real motivation may be a failure to follow social norms that are not actually illegal, or a misunderstand that could be cleared up. |
Does the ( Fruit of A Poison Vine ) Apply if police find a gun when pulled over for speeding but not ticketed? My husband and I got pulled over. Officer said it was for speeding. My husband has past felonies,so they searched the car and found a gun (not loaded). So they charged him with possession of hand gun ( bond is 5,000 cash ) but did not give ticket for speeding which was reason he said he pulled us over. Would the Fruit of A Poison Vine apply here?? | 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 are completely in the wrong. It is against the law to operate a motor vehicle without a license. It is against the law to have a motor vehicle that is not insured. It is against the law to violate the conditions of your probation which almost certainly provide that you are not allowed to operate a motor vehicle until your license is reinstated and you have insurance in force. Your personal belief that you didn't break the law is not a valid reason not to pay a fine on a ticket that is ratified by a court. The cop was right when he told you that you were crazy. | In the United States, you can always choose to (try to) flee police. If the police subsequently assert that they tried to detain you, then they can choose to charge you with a number of crimes (which vary by jurisdiction). The assertion that you did not (or could not) in fact hear or perceive a lawful order to stop is a defense that you could raise in response to such charges. It is up to the triers of fact to determine whether, given the specifics of the case, they accept that defense. | The potential problem is if there is a form which you had to sign which says "I am a US citizen", and you signed the form (who reads the fine print, anyhow?). Unfortunately, that statement is false, and there are consequences for making a false statement. However, that law penalizes false statements with the intent to deceive, not mistaken statements. Nevertheless, this is a matter that a professional really needs to deal with. If there was no form and they didn't verbally ask you to assert that you are a citizen, then there is less of a problem (for you), but still one needs to be extremely cautious in dealing with the court. [Addendum] It is highly likely that the form contained wording like "swear" or "certify" and mentions "perjury", so the error would be in the ballpark of perjury. Perjury is making "a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath". Aggravated perjury is perjury which "is made during or in connection with an official proceeding and is material". The term "material" means "matters; is not inconsequential". The consequence of a non-citizen improperly serving on a jury is that a mistrial has occurred, which is not inconsequential. Aggravated felony is a third degree felony. The penal code says that An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years. (b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000. I must emphasize that an essential element is "intent to deceive and with knowledge of the statement's meaning", an element that cannot be present if there is no awareness of such a statement. Thus an innocent mistake could be legally excused. When you become aware that a statement made under oath was false (assuming such a statement was made), then in maintaining the falsehood, that would be intentional deceit. This is why it is necessary to consult with a lawyer. On the Houston form, you would have to check the "are a US citizen" box. The Fort Bend county form has you certify and sign on the front page: it does not require you to certify that you are a US citizen, only to certify (and sign) if you are not – so if you failed to read the back side, that isn't a literally false statement. I can't locate an online form for Tarrant county, so dunno if that out is available. | I think the officer is probably lying, not just mistaken, but they are not required to always be truthful. In addition to the law against possessing ID with intent to commit, or to aid or abet, any crime, it is also against the law to be knowingly in possession of a stolen credit card, or any other property. An example of a strict-liability possession crime, which the officer knows of, is that it is a crime to possess heroin, period. I am skeptical that the officer actually believes that there is a law making it a crime to be in possession of a credit card with permission, and suspect that he thinks it is stolen. | Sending a letter to the red light camera company or police department may or may not get the charge dropped before trial. But whether the charge gets dropped before trial isn't the important question -- after all, people sometimes do get charged wrongly -- rather, the question is, if it goes to trial, whether you will win. Since this question is about California, all traffic tickets in California, including red light camera tickets, are criminal cases (that's why the case will be named "People of the State of California v. [your name]" in court documents). The burden of proof is on the prosecution, and the standard of evidence is "beyond a reasonable doubt". There is no provision in California law to fine or otherwise punish the owner of a vehicle for a moving violation, except through a conviction as the driver who committed the violation. If you plead not guilty and it goes to trial, the burden will be on the prosecution to prove beyond a reasonable doubt that the driver was you. If the driver in the picture does not look like you, there is no way they can meet that burden, and the court must find you not guilty. (In most cases the prosecution will immediately drop the case when they discover that the picture does not look like you.) Note that you have an absolute right to not testify in your own criminal trial where you are the defendant, so there is no way they can force you to testify at the trial about who the driver was if it was not you (which would be irrelevant to the case against you anyhow). If you do not say who the driver was, and the police department fail to guess who it was (e.g. by searching for drivers whose licenses share the same address as you for someone who looks like the one in the picture), then nobody gets fined or punished for the violation. This is true even if you know full well who the driver was, or even if you were pictured sitting right next to them. You don't need to claim not to know who the driver was, because whether you know or not doesn't matter -- you have no legal obligation to tell the identity of the driver even if you know, and you cannot be fined or otherwise punished for the violation if you intentionally refuse to tell. | How does the victim know that there is water in the bottle? And not some strong acid? I think there will be a difference between someone cleaning their windows and spraying someone with the same bottle they used for cleaning the windows, and some woman's jeaulous ex-boyfriend sneaking up on her in the night and spraying her in the face with fluid from an unknown container. In UK law: "An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force." So spraying water out of container labelled "acid" would be assault. Spraying water on a person after threatening them with an acid attack would most definitely be assault. If the victim expects to be injured then it is assault. Even if the victim fully expects that the fluid is water, I could imagine that you would be charged with assault if a bride to be just spent two hours getting her hair and makeup done, and you destroy the work just before the wedding by spraying her with water. | Illegal weapons Weapons are defined and are made illegal by statute. In many states, it is illegal to possess brass knuckles. For example, California penal code 12020(a)(1) makes it illegal to possess "any metal knuckles", "writing pen knife", "any leaded cane", among other things. I don't know of any state where it is illegal to pick up a stick, or keys, etc. So, yes, there is a legal distinction between your four scenarios. The mechanic is committing a crime by merely possessing the brass knuckles. The others are not committing a crime by the mere possession of the things you mention (unless there are states where they've been made illegal). Effect on a self-defense analysis Courts would have the jury go through the same self-defense analysis in each of these cases, regardless of the legality of the weapon used. We've described that analysis here. A pure self-defense analysis does not factor in the legality of the weapon that is used. But, if the weapon has been made illegal because of its disproportionate ability to injure, etc. that might weigh against the reasonableness of the force that was used when choosing to use that weapon in self-defense. Possession of an illegal weapon might also weigh against the credibility of the owner of that illegal weapon. |
Is it illegal to post a picture of someone without their permission? If I took a potentially embarrassing photo of someone and posted it on a social media site without the person’s permission, such as instagram, could that person take legal action against me? Also, would this be different if someone sent me the photo themselves, but still did not give me permission to share it? This is a situation / argument between two of my friends and I’m curious on what could happen. | Posting a photo does not require permission of the subject as long as the photo was taken lawfully (i.e. taken when the subject does not have a reasonable expectation of privacy). Did the subject have a reasonable expectation of privacy when the photo was taken? Some examples of photos taken when a subject has a reasonable expectation of privacy: A photo of someone standing in their bedroom in their underwear, taken from the yard outside looking through the window A photo of someone in a public bathroom, taken with a hidden camera in the bathroom Some examples of photos taken without a reasonable expectation of privacy: A photo of someone standing on a public street saying "You don't have my permission to photograph me" A photo of a friend in a friend's house, taken by another friend while at the house, assuming the photographer was not there unlawfully (i.e. was invited) A photo of another student in class/on campus at school/university, taken by someone lawfully at that place. The point is whether the person the photo was taken of could reasonably have expected privacy when the photo was taken. If a reasonable person wouldn't expect privacy in the same situation, then you had their permission to take the photo, and then whether or not it is lawful to post (i.e. publish) the photo without their permission becomes the question. So is it lawful to post the photo without the subject's permission? Assuming you took the photo lawfully (i.e. you took the photo with their permission), then you are free to post it (i.e. publish it). How about posting a photograph without the photographer's permission? If someone else took the photo and owns the copyright, you would need their permission or to purchase the copyright from them, otherwise you could be liable to them for civil damages, even more so if you could reasonably expect to profit from publishing the photo (including adsense revenue on a blog). It would be useful to know the circumstances of how the photo was taken and who owns the copyright for your specific example. | If you do not have permission to make and distribute reproductions of the work, then it is illegal to make and distribute reproductions of the work. US copyright law Indian copyright law | You tag the question with "criminal law", suggesting that by "illegal" you mean "is it a crime" -- that would depend on jurisdiction, but in the US or my state, it is not a crime. There are crimes that you could commit with such an account, but violating the TOS is not itself a crime. However, it is illegal, a breach of contract, as you can see from the TOS "You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission". | You have a contract - they have fulfilled their obligation (they paid you), if you do not fulfil their obligation (not to post it online) then you are in breach of the contract. Your obligation continues even if you gift the money back to them. If you breach the contract then they can sue you for the damage that they suffer. Presumably this would be damage to their reputation and for a public figure this could run into millions of dollars. In demanding additional money from them beyond what you are legally entitled to you are, at least, flirting with the crime of extortion/blackmail. This would not be a matter for them to sue you for, it would be a matter for the DA to prosecute if they chose to make a complaint. There doesn't seem to be a defamation issue here because you are not stating anything that isn't true. Now, the extent of the agreement appears to prohibit you posting it on the internet, however, the spirit of the agreement is that you will keep the information secret in all respects - that is likely how a court would look at it. Of course, if someone does steal the information from you then you haven't broken the agreement but you would probably have to prove that it was stolen when they sue you. | What is the legality of someone putting a virtual hot spot on your property without permission? I know we are in uncharted territory but how would this compare to setting up a contest that would require going on your property without permission? The existence of a game does not authorise entrance to private property, barring some agreement with the owner. That is - if it is trespassing without Pokemon Go (or, for that matter Ingress), then it is trespassing while playing them. That being said, the creators of the game are free to place their in-game targets anywhere they please, and it is hard to imagine a scenario where they would be liable for their users' actions, unless they have not taken reasonable steps to prevent their users from doing so - Niantic clearly instruct their users to respect the law and also, only require that their users be within a certain distance of these points, not actually be at them. Is it currently legal to say Go to person X house and touch a tree? If not, does the current law extend to augmented reality? Nope, unless it can be done without entering private property (which includes the airspace above the property, to some extent). And there are no special cases for augmented reality. Now, there is some possibility that if they create a private nuisance - by being too loud, or by otherwise interfering with the use of the property - owners of a property could bring a claim in tort against players for doing so - or charges for a public nuisance, when done in a public area. | I've found Google's filtering based on licence to not be very reliable, at least not reliable enough to trust from a practical legal perspective. Using a photo that you don't own the copyright to is a risk. You may be infringing copyright by doing so. The owner may eventually ask you to stop, or they may sue you for damages. Further, some copyright infringement is criminal 17 USC 506. In my opinion, it would be unwise to use a work commercially that you don't affirmatively know you have permission to use. | Is that extortion? false advertising? or in any way illegal? Not at all. The owner of the site is simply exercising his right as outlined in the terms and conditions from when the user signed up. And giving users an option for continued use of the site (that is, for him not to exercise a right of which they were always aware) does not constitute extortion. | You can always be sued, but truth is an absolute defense to libel. Your actions could be perceived in any way imaginable. What usually matters for legal purposes is how a "reasonable person" would perceive them. As an example, Pennsylvania's Megan's Law Website warns: Any person who uses the information contained herein to threaten, intimidate, or harass the registrant or their family, or who otherwise misuses this information, may be subject to criminal prosecution or civil liability. It further clarifies: Public access to information about registered sexual offenders is intended solely as a means of public protection, any other use prohibited. |
Copyright in copyleft licence? Is the copyright mentioned in GPL v3 used just for the sake of defining the word? (It's not copyrighted, but the word encompasses the same actions that would violate the copyright if it was copyrighted.) To “propagate” a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well. | No. GPL works are copyrighted (as are most creative works basically everywhere in the world, as soon as they're created, whether or not the author does anything about it), and copyright is what gives the GPL "teeth". Without copyright, you would generally be able to duplicate and distribute programs without any kind of license or permission from the author. Copyright law restricts your ability to do those things. The GPL is a license, which means it's a grant of permission. It says that you may copy and modify and do other things, provided that you comply with the other provisions set out in the license. Quoting from the GPL v3: You are not required to accept this License in order to receive or run a copy of the Program. [...] However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. So if you were to distribute some GPL-licensed software in a way that didn't comply with the terms of the license, the legal framework that would allow someone to sue you to stop you doing that would be copyright law. | The general rule under united-states law is that copyright is infringed when a copyrighted work, or any part of it, is copied or distributed without permission, or a new derivative work based on the copyrighted work is created or distributed without permission. There are several exceptions to this. There is, for example, a specific right to create a backup of a computer program to which one has lawful access. The best known and widest exception to copyright in US law is "fair use". What use is a fair use is a highly fact-driven question: It cannot be answered in general, except by quoting the statutory provisions. There are no exact rules for what is and is not fair use that apply in all cases. There have been several detailed discussions of fair-use on this site, including https://law.stackexchange.com/a/66608/17500 not long ago. Note that fair use is a strictly US concept, and does not apply under any other country's law. Other countries have their own exceptions to copyright, which will cover some of the same cases as fair use, but not all of them, and will get to results by different routes. If hashes were distributed separately, to confirm the authenticity of a program, they would probably not be protected by copyright for lack of originality. Under US law, and particularly the Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) case there must be a "minimal degree" of creativity for something to be protected by copyright. The decision said: Many compilations consist of nothing but raw data—i.e. wholly factual information not accompanied by any original expression. On what basis may one claim a copyright upon such work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. ... The key to resolving the tension lies in understanding why facts are not copyrightable: The sine qua non of copyright is originality. Since a hash or other digital signature can be computed automatically from the document to be signed (indeed that is its value), it is not creative and copying a hash alone would not be an infringement. Whether this would be true of other metadata depends on the exact nature of that data, and the degree of creativity that it represents. Without specific facts no judgement can be made, and making that kind of very specific judgement might be beyond the scope of this site. A comment said: Just because a work is copyrighted, doesn't mean every part of that work is copyrighted, ... I would put it that every part of a work is copyrighted, but some copying does not amount to infringement. Extracting facts and rewording them so that none of the expression is copied is not infringement. Extracting a completely non-creative part of a work and reproducing it is not infringement. Copying a limited amount for use in a review or commentary is often fair use, and fair use is not infringement. Video Games There is nothing in US law specific to video games. There is little that is specific to computer software, although the right to make a backup copy is protected. A good deal of case law has focused on the issue of temporary copies made while running a program, which does not seem relevant to this question. Other cases have focused on the protectability of user interfaces, and of APIs, also not relevant here. whether a work is packaged as a single file or as many related files should not affect its copyright protection. (I know of no case on that specific issue.) Whether copying a part of acomputer file is infringement or not would depend on the purpose of the copying, and on the effect or potential effect on the copyright holder, and perhaps on other factors. Copying a non-creative hash, as a way of detecting whether a file is modified or not, does not seem likely to be infringement, unless the holder could show harm, but no one knows for sure how a court would rule in such a case. Copyright does not protect facts, but it does protect the way in which facts are expressed, unless there is only one or a few such ways available to express such a fact. Copyright also may protect the selection and arrangement of facts, except where the arrangement is "obvious". Placing facts in alphabetical order (as in a phone book) or chronological order (as in a timeline) has been held to be obvious and not protected. International Standards The question and a comment ask about international standards for copyright. In effect there are none. The only significant international agreement on copyright is the Berne Copyright Convention. That is a treaty to which almost every nation belongs, thus rendering the Universal Copyright Convention and other international copyright agreements obsolete. But the Berne Convention leaves details to national copyright laws. The making or authorizing of copies, and the authorizing of derivative works are part of copyright in every Bern-compliant country. Berne provides for exceptions to copyright, but leaves the details to national law. Moreover, there is no intentional court in which copyright claims can be made. Anyone wishing to sue for copyright infringement must do so in the courts of some specific country, and so all the case law which defines details on what is and is not infringement is national, not international. It should be noted that a copyright holder may sue in any country where infringing actions have occurred. When an allegedly infringing work is distributed over the web, that often means that a plaintiff may sue in almost any country, although enforcement will be limited if the defendant has no presence and no assets in the chosen country. Thus the copyright laws of multiple countries may be relevant to a particular case. | No. The GPL does not say 'pretend to make source code available'. The means by which the source code is made available must be equivalent to the means by which the compiled program is made available. Relevant clauses include (in version 3 of the GPL) clause 6, which says: You may [distribute your program in object form] provided that you also convey the machine-readable Corresponding Source under the terms of this License... The conveyance of source code must be in one of the prescribed ways. The one most relevant to the question (and which is illustrative of the issue at hand) is that in clause 6(d): [You may convey] the object code by offering access from a designated place (gratis or for a charge), and offer equivalent access to the Corresponding Source in the same way through the same place at no further charge. You need not require recipients to copy the Corresponding Source along with the object code. If the place to copy the object code is a network server, the Corresponding Source may be on a different server (operated by you or a third party) that supports equivalent copying facilities, provided you maintain clear directions next to the object code saying where to find the Corresponding Source. Regardless of what server hosts the Corresponding Source, you remain obligated to ensure that it is available for as long as needed to satisfy these requirements. The phrase 'equivalent access' means that, if you are only prepared to provide source code in an arbitrarily padded format over a very slow network link, then that is the only form in which you can provide the object code. So you will have no customers. Where you convey your software via other means such as on disk (the other subclauses of clause 6) there are similar requirements for equivalency. | how would this differ between say ArXiv which is open access, and a publication that is pay-only, like Elsevier or Nature? It wouldn't. But if the equation is the creation of the author of some publication, as in the author is expressing some unique mathematical expression, obviously the publication should be referenced. But is referencing enough? Are there additional rights one must obtain from the publication and/or author in order to show this content? Laws of nature, including purported laws of nature, are not protected by copyright. So, usually, key equations in an academic paper aren't protected by copyright law. Referencing the work is important as a matter of academic ethics, but is legally irrelevant. Copying of exposition by the author beyond laws of nature is permitted as fair use if it is limited to quotations necessary for academic discussion and criticism, but copying of an entire work would not be permissible fair use in most cases and would constitute copyright infringement. Of course, there is a large gray area between those extremes. | You can make a derivative work if: the original is not under copyright, you are the copyright owner, you hold a licence from the copyright owner that says you can, or your usage is fair use or fair dealing as applicable. For your proposal, the image is copyright, you don’t own it, you don’t have a licence and what you propose is neither fair use nor fair dealing. You can’t do it and you can be sued if you do. | Copyright in the US is usually a civil matter. Meaning that the copyright owner can sue (typically for money damages or injunctive relief) an infringer. The criminal laws that we have are aimed at the reproducer and/or distributor. In other words, chances are that you won't get in any criminal trouble for accessing academic articles of dubious origin. But never say never. RIP Aaron Schwartz. | Software qua property is protected by copyright *perhaps patent, in some jurisdiction). The general rule is that whoever creates the thing (book, song, software) has the exclusive right to the thing. If an employee of Company 1 writes software for Company 2, that employee might (rarely) hold the copyright, but typically that scenario would involve a "work for hire", where the employee is hired by Company 1 to do such tasks as part of his duties with Company 1 (which might then be given to Company 2). This would then be a work for hire, and the copyright is held by Company 1. If the actual author was an independent contractor, he would hold the copyright – see Community for Creative Non-Violence v. Reed for analysis of the subtle nuances in making that determination. The concept "work for hire" which crucially involves the "employee" relationship would not be applicable to Company 2 paying Company 1 for a product, and as long as the actual author is an employee of C1, C1 has not created a "work for hire" in the legal sense. Without some explicit disposition of copyright, Company 2 is in a sketchy position. Since C1 holds copyright, they must grant a license to C2 so that C2 can legally use it; or, C1 must transfer copyright to C2. This does not happen automatically, and (if C1 does not want to remedy the situation after the fact) C2 would need to take C1 to court to force a resolution to the situation. At that point, the issue would be what C1 implicitly promised, even though they didn't put it in writing. It is likely that the initial exchange was along the lines "Can you make us a program that will do X?", and the answer was "Sure, that will cost Y", and then "Okay, go ahead, looking forward to the product". The courts would not simply say "Well, you didn't explicitly require a license, so you don't get to actually use the software that you paid for". However, it's a somewhat open question whether the court would order a license (of what nature?) or a transfer of copyright. The disposition would depend heavily on the facts of the case (what was said, what C1 actually did, what kind of business they are, what did creating the work involve...). | united-states Copyright 17 USC 101 says: “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. Note that the key element is distribution or offering to the general public. It has been held that distibution to only a small, selected group of people does not constitute publication in copyright law. Prior to the US 1976 Copyright Act, publication was a vital concept in US copyright law, because Federal copyright protection applied only after publication, and most copyright terms were measured from the year of publication. Publication without a copyright notice was usually fatal to US copyright protection. Since the 1976 law became effective (in 1978), the concept of publication is much less vital, but can still be important in copyright law. Copyrights of works made for hire or other works with corporate authors are calculated from the date of publication, not by the life of the author. Registration is effective to preserve the right to statutory damages if it occurs within three months of first publication. While fair use can apply to unpublished works, courts are generally less willing to apply it than they would be for published works. Publication may be significant in other aspects of copyright law as well. Defamation In the context of defamation "published" simply means "communicated to a third person" The communication need not be to the public at large. The LII page on Defamation defines "publication" as communication of [the defamatory] statement to a third person Nolo's page on "Defamation Law Made Simple" says: "Published" means that a third party heard or saw the statement -- that is, someone other than the person who made the statement or the person the statement was about. "Published" doesn't necessarily mean that the statement was printed in a book -- it just needs to have been made public through social media, television, radio, speeches, gossip, or even loud conversation. Of course, it could also have been written in magazines, books, newspapers, leaflets, or on picket signs. The page on "Publication and Libel Laws" by LegalMatch says: Publication is the delivery or announcement of a defamatory statement to another person through any medium. With respect to libel, the defamatory statement must be communicated through a tangible medium ... Generally, publication occurs once a single individual sees or hears the defamatory statement. However, America has a long history of protecting free speech. As a result, courts will sometimes require more action than just the act of seeing a defamatory statement in print to determine when publication occurs ... The exact time of publication is very important in a libel case. Generally, the time of publication will have an effect on a libel case in two ways: Statute of Limitations – Depending on when the publication of a defamatory statement took place, that is when the period of limitations begins to run. Knowing the exact time of publication can be very important if a statute of limitations is at issue. Damages – The time of publication can have a large impact on the damages a defamed person can recover. Generally speaking, the earlier the date of publication, the more damages a person has suffered. The Law Dictionary's page on "How Do You Prove a Defamation of Character Claim? says: The interesting thing to note about publication is that it’s not in the modern context, where it’s been published. It just means that it was done in a way where other people heard, saw, read, or otherwise came across this harmful lie about you. IE: it was public in some way where a third party was exposed to the statement. Exception: Confidential Communication If an allegedly defamatory statement is communicated to another in confidence or as a privileged communication, this often will not constitute "publication" for the purpose of a defamation action. For example, if it is part of a lawyer/client communication, or a privileged marital communication, or an employee/employer communication made in confidence or protected by an NDA, it might not count as publication. The Difference The key difference is between providing a work to the general public (copyright), and communicating a statement to any third party (defamation). In addition,. publication is an essential element of any defamation claim, but only sometimes a relevant fact in a copyright claim. My understanding is that this will also be true in most common-law countries, and possibly in some civil-law countries as well. But I cannot support that with sources. |
When does "mental health" factor into penalizing an individual? What is the reason behind a person with poor mental health wouldn't face the same repercussions as someone with good mental health for breaking the law? In extreme situations it could be used as a defense in murder (like James Holmes). In lessor situations, someone who is drunk saying racist remarks on the street may not be charged with hate speech. If the reason is people because sending them to prison wouldn't help rehabilitate them, do people really think it ever does for people with good mental health? Doesn't this sort of allow psychiatrists to make up the law, because they can decide if something is considered a mental condition? Some people would argue that someone who would commit such crimes (such as rape) couldn't possibly be in their right mind. | It depends on the jurisdiction but, very broadly speaking, the person might be ill such that: they did not know what they were doing or that what they were doing was wrong (insanity) their ability to understand their actions or make a reasoned decision or self control was highly impaired but not to the degree of insanity (diminished responsibility or perhaps provocation) they were unconscious when they acted (automatism - e.g. an offence committed while 'sleep walking') Clearly they lack the same culpability as a person with "good mental health", who consciously committed a criminal offence, knowing it was wrong. That does not mean the ill person can 'get away with it'. Claiming diminished responsibility as a defence to a murder charge may mean the person will instead be tried for manslaughter, which is also punishable by imprisonment. Depending on the circumstances a court (and subsequent people in authority) might be persuaded that the person is so dangerous they must be indefinitely detained and treated without their consent. Doesn't this sort of allow psychiatrists to make up the law, because they can decide if something is considered a mental condition? Just because a psychiatrist comes along doesn't mean the court will do what the psychiatrist says is best - the court will hear both sides of the argument, establish the facts, interpret the law and deliver a verdict. Some people would argue that someone who would commit such crimes (such as rape) couldn't possibly be in their right mind. Certainly, but so far as I'm aware that defence is very rarely used and never successful. | Unless the Youtube Video shows them committing a crime, then no, they couldn't be arrested and tried for a crime. Them saying it, not under oath, is just hearsay that has no evidentiary value unless there is already other evidence they have committed a crime. In that case, its an admission. But there must be other, either circumstantial, or actual physical evidence of a crime. Past intoxication is not a crime, either. Possession of drugs, if caught with them is. But saying you got high is not. People have walked into police stations and confessed to murders. But with no evidence, no body, no name of a missing person, they can't even be held after the holding period for investigatory purposes expires. If the video shows them committing assault, or breaking and entering (there actually are idiots who post this stuff), the video is actual evidence of a crime and it is often used against them. The statements can be used to begin an investigation, but people don't usually confess to anything worth pursuing even an investigation. The fact that someone says they used to do something criminal is not enough. For all you ( meaning anyone ) knows, the statute of limitations has expired because they "pirated games" 10 years ago. Your comment is right on. | 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. | canada The terminology in Canada "not criminally responsible reason on account of mental disorder" (NCRMD) (Criminal Code, s. 16). A finding of NCRMD is a special verdict that results in the accused being placed under the jurisdiction of the Review Board.1 Assuming for the sake of analysis that such an outcome is made out in the circumstances that you've described (much would depend on the expert evidence), such an outcome would not necessarily lead to indefinite detention. The options available are: absolute discharge; conditional discharge; or detention in custody in a hospital And even when in detention in a hospital, there is a regular review and the person is released when detention is no longer necessary for public safety. The burden is not on the detained to show that the chance of a repeat is essentially zero. That would be a great exaggeration of the barrier to release and incorrectly reverses the burden. Instead, the Review Board must find evidence that there is a significant continuing risk to the public, at the time of the hearing, in order to keep the person in custody. There is no burden on the accused or on anyone to rule out future occurrences with any certainty. Latimer and Lawrence explain: The Supreme Court of Canada further clarified in R. v. Winko that Section 672.54 does not create a presumption of dangerousness. In other words, while the protection of society is paramount, there must be clear evidence of a significant risk to the public before a court or Review Board can maintain control over an accused through the imposition of a conditional discharge or detention order. Some extracts from Winko: Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat there is never any legal burden on the NCR accused to show that he or she does not pose a significant threat to the safety of the public A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public. 1. This is one major difference between NCRMD and the defence of automatism, which is a defence based on negation of the elements of the offence and would result in a standard acquittal if successful, with no jurisdiction for the Review Board to impose detention or conditions. | 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. | Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality. | Anti-discrimination laws apply to certain protected classes only. Homelessness (real or assumed) is not one of them, so it is perfectly legal to bar such people from your premises. It is also perfectly legal to bar people with red hair (assuming this is not indirect discrimination against certain racial groups). Nobody is required to serve everybody who comes in; what you are not allowed to do is ban women, homosexuals or other groups set out in the applicable statutes. | Police have discretion whether to arrest and prosecute or not. In exercising this discretion they may take into account whether victim is identified and what he/she says, but there are no legally enforceable rules around it. Discretion is discretionary after all. Other factors that may influence the police's decision whether to arrest notwithstanding whether the victim cares may include but are not limited to: Level of potential threat that the offender poses; Strength of evidence that the crime was committed (and hence prospects of conviction). Say the owner of the store may not care or have seen anything, but there are witnesses; Likelihood that the offender may get away; Personality of the offender; Mood of the police officer. |
Could a judge sentence someone who isn't on trial? A somewhat common TV trope is for a judge to sentence someone who isn't actually on trial - for example, the real culprit bursts into the middle of a trial and confesses, and then the judge says, "In that case, I sentence YOU..." Could this ever happen for real? (United States) It seems like a major violation of due process. The closest real-world example I can think of is that I know judges have had people thrown in jail for bad behavior in the courtroom. But I'm not sure if that counts as a "sentencing" or if it is more like an arrest for contempt of court. | No. This isn't possible. A judge can only sentence someone after they have pleaded guilty or been found to be guilty, following an indictment or criminal complaint, and multiple advisements of rights. | Ignorantia juris non excusat You can say I didn't know: it won't keep you out of jail. Rather than delving into the specifics of your question, I will keep my answer general. If you break the law, you break the law. It doesn't matter if: you don't know what the law is, you didn't think the law applied to you, you thought what you were doing was in accordance with the law. "Break the law" is an objective fact - there is no subjectivity involved. The state of mind of the person is, in most jurisdictions, irrelevant; the common law doctrine of mens rea or "the guilty mind" has almost universally been done away with. Now specific offences have specific defences. Generally, in underage sex cases genuine ignorance of the age of the person is one such defence. A court may decide that ignorance that the person was underage under US law may qualify for this defence. | First, the proper immediate action is to - while not leaving the judicial branch - appeal up to the next higher court. In federal courts, the lowest levels are district courts, which issues decisions appealable to the circuit courts, whose decisions are sometimes able to make their way to the Supreme Court by submitting a Petition for Writ of Certiorari. Then the Supreme Court meets and decides which appeals it will hear for the year ahead. This works similarly on a state level, except the levels of the courts may have different names (for example, Washington, DC’s trial level court is not the District Court, but the Superior Court. In Virginia, one trial court is the General District Court, which hears claims up to $25,000 and another trial court is the Virginia Circuit Court which hears other claims, and some felonies while also serving as an appellate court for the General District Court). Assuming those options have been exhausted, the reality is yeah, sometimes there are judges who will act that way. Sometimes they will get away with it because they are maintaining enough discretion, they are powerful enough, or because someone else is corrupt, too. A number of options and variables may come into play at this point. What, if any, laws exist to prevent the behavior in question? What ethics standard does the jurisdiction have (this would likely be developed by the local bar association)? Are there any other organizations he or she is affiliated with professionally? Who else knows about it, how serious is it, will anyone else speak up, etc...? Each of those variables - and likely a number of others not mentioned here - may play into the outcome. They each can serve to make one’s actions more or less easy or desirable to perform, whether by exposing and embarrassing an actor, reminding him or her of the potential legal liability associated with such actions, etc. All that said, there are limits on what a judge may or may not do. For example, in federal criminal cases, the Federal Sentencing Guidelines, rules assembled by the US Sentencing Commission that are, of course, non-binding, set a floor and ceiling on the years in prison one should be sentenced to in various circumstances with a formula used to make the calculation. It is rare (and sometimes controversial and subject to scrutiny) if a judge grossly or unreasonable deviates from the Guidelines. The intent of the Guidelines is to remove judicial bias from the doling out of prison sentences. Results have arguably been mixed. Finally, I’d be remiss not to mention that in general judicial discretion in many aspects of litigation is a desirable and useful occurrence, whether it manifests itself in the dismissal of a frivolous case or appointing counsel to an indigent defendant. | Generally speaking, ex parte communications with a judge (i.e. communications to which all parties to a case are not notified) are prohibited, both by law and as a matter of judicial and attorney ethics, subject to some narrow exceptions (e.g. applications for arrest warrants prior to the arrest warrant being carried out). Generally speaking, communications with the court (which is to say with judges or their subordinates) are made a matter of public record, and if the communication is about a particular case, all attorneys in the case must be given notice of it (if someone is not represented by an attorney, the notice goes to the defendant rather than their non-existent attorney). The attorney may then communicate the communication to their client, and generally speaking should communicate it to the client. I don't see anything in the question that suggests that this proposed communication would fall outside the general rule. But, the question isn't very specific and I wouldn't rule out the possibility that an exception might apply in a case with very unusual facts. Also, usually, a request to reconsider a sentence has to be made by a formal motion filed by the prosecutor or the defendant. Generally speaking, a third-party cannot file that motion unilaterally. A third-party or victim would usually only have input into the decision through the prosecutor's office. Third parties and victims are not generally permitted to file motions to reconsider sentences that have been imposed even in states with "victim's rights" statutes, but can publicly provide input to the court before a sentence is imposed, usually at the behest of either the prosecutor or the defendant. Furthermore, generally a criminal defendant has a constitutional right to not have a sentence made more severe after being sentenced the first time around. Reconsideration of a sentence once it is imposed may only be in the direction of leniency. Once a sentence is imposed, it can't be reconsidered to be made more harsh. | The US legal system deals with this by punishing you for the crimes of which you are convicted. That is, those where the evidence (whatever it is) convinces a jury that you are guilty beyond reasonable doubt. If there is insufficient evidence, for whatever reason then you would not be convicted. The prosecution can, subject to admissibility, put forward whatever evidence they like in order to convince the jury. This can include a pile of ash that they allege contained convincing and unambiguous evidence of guilt. Of course, if that's all they've got the prosecution would probably be censured by the judge for wasting everybody's time and money, more likely, a prosecutor wouldn't lay charges in the first place. As to punishment for an evidence tampering conviction: you have been convicted of evidence tampering, not drug production so you will be punished for evidence tampering, not drug production. The legislature sets different punishments for these for a reason, possibly a reason known only to them but a reason nevertheless. The judge has discretion to apply anything between the minimum and maximum sentence prescribed. A conviction for evidence tampering in a drug case rather than, say, a jaywalking case, is likely to get a more severe sentence all else being equal. | No, abuse of power is not necessarily criminal Imagine a judge that is “heightist” - they always rule in favor of defendants who are taller than 175cm and always rule against those who are shorter irrespective of the merits of the case. This is clearly an abuse of power. It’s not illegal because “height” is not a category protected from discrimination (AFAIK). However, it is a failure to correctly discharge their legal obligations. | The judge's decision is reversed or vacated, and then she continues being a judge as though nothing happened. There are essentially no consequences available for federal judges, with the exception of impeachment. | You do not automatically have the right to trial by jury in traffic court. The government only requires courts to allow trials by jury when it is not a petty offense. Refer to Duncan v. Louisiana, 391 U.S. 145 (1968): Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses, Cheff v. Schnackenberg, 384 U.S. 373 (1966). ... In the federal system, petty offenses are defined as those punishable by no more than six months in prison and a $500 fine. Since most traffic violations do not involve jail time and do not exceed a $500 fine, most traffic violations are also not eligible for jury trials as defined by the government. Presumably the law is built this way so as not clog the courts with a bunch of people demanding jury trials for very minor infractions that need not be tried by jury. The Washington State Civil Rules you reference do not grant any further rights to trial by jury not already granted otherwise. It can be quickly summed up as saying that trial by jury rights cannot be revoked, and outlines how one should go about requesting a trial by jury. If you were fined more than $500 and were denied a jury trial, consult an attorney in the area about the situation. |
Is it illegal to remove a watermark? Inspired by this poorly worded question on graphicdesign.stackexchange: I want to remove a text watermark Is illegal to remove watermarks? Off the top of my head I can think of 3 possible legitimate reasons: The watermark was created by the author who accidentally deletes the original. Now he want's to know how to remove the watermark. The work is abandoned copyright (grey area?) For example: The watermark could be a logo from a screenshot from an old TV network that no longer exists. Question asker could ask how to remove that watermark for personal non-commercial reasons. Someone who just wants to learn a skill. IAMAL so the following statement may be incorrect. Correct me if I'm wrong. It would not be considered copyright infringement if someone downloads a sample watermarked image just for the purpose to remove the watermark. After removing the watermark the image is immediately deleted. The image isn't technically being used in any original work. Downloading a publicly displayed watermarked image to your desktop is not illegal as far as I know. Modifying it to learn a skill and then deleting it isn't illegal either. So, no law is being broken. I think #3 might be the weakest argument I can make because I'm not a (US) copyright expert. However, I still believe there are some legitimate reasons to allow watermark removal questions like this. (If the question isn't worded as poorly) For an example of abandoned copyright I have the following source. I know it doesn't have to do with art specifically but it proves that copyrighted material can be abandoned and even given a free pass to some extent. (again in my favorite color grey) The Internet Archive has created an archive of what it describes as "vintage software", as a way to preserve them. The project advocated for an exemption from the United States Digital Millennium Copyright Act to permit them to bypass copy protection, which was approved in 2003 for a period of three years. The exemption was renewed in 2006, and as of 27 October 2009, has been indefinitely extended pending further rulemakings (https://en.wikipedia.org/wiki/Abandonware) | 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. | It is possible to abandon copyright ... maybe. However, this game has not been abandoned. When the owner of the company was liquidated, the copyright became the legal property of the liquidator in trust for the creditors. It is for him or her to decide how to deal with the property but the copyright still exists until 70 years after the author(s) death. If you allow downloads you are breaching copyright unless you have permission (or you meet the Fair Dealing criteria - you probably don't). The person to seek permission from is the liquidator od the company. If you get sued they do not need to demonstrate financial loss - copyright claims can either be pursued for actual or statutory damages, that is, a fixed amount per violation. In addition, in egregious cases, copyright violation is a crime prosecutable by the state. | No, CC does not replace copyright. A creative commons license is one way to use the copyright that you already have the moment you make an original creative work. Without a copyright, a creative commons license does nothing. You don't need to do anything to get a copyright. However if you plan to exploit a work commercially, or want to be sure that it is well protected, you can gain additional protection in the US and some other countries by registering the copyright. US registration can be done online at this page. The benefits of US registration are described on this page. Nor do you need to "file for" a Creative Commons license. by publishing or distributing a work with an indication that it is subject to a creative commons license, you have released it under that license and anyone may thereafter use it subject to the terms of that license. This is done with a statement such as "Released under the Creative Commons CC-BY-SA 4.0 license." Such a statement is often placed near the (optional but strongly recommended) copyright notice, but that is not required. if you wish to specify the form of attribution (for example to a specified pseudonym) or a URL to use in providing attribution, that should ideally be placed near the license statement. If the work carries a list of credits, those may be placed nearby as well, but need not be. | All the CC licenses permit anyone to use the licensed content, and to make copies of it for others. Some of them permit using it for commercial purposes, others (the ones including the -NC- clause) do not. Some CC licenses permit creating modified versions of the original work (derivative works), others (the ones including the -ND- clause) do not. I do not know of any standard license which allows users to create and distribute derivative works, but not to distribute the original. The license used by Project Gutenberg permits re-use and re-distribution, but if a fee is charged beyond recouping expenses requires the removal of the PG name and logo. One problem is that if derivative works are allowed, this would include works which are only trivial modifications to the original, which would have the effect of allowing distribution of the original. If the main concern is about commercial sales, possibly a CC-NC-SA license would effectively serve the purpose? That allows redistribution, including of derivative works, but forbids commercial reuse or distribution without separate permission, and requires all redistribution to be under the same license. Otherwise a new license for this situation might have to be created. It is often a good idea to have the assistance of a lawyer with IP expertise in creating a new license, or the wording chosen may have unexpected effects or include unintended contradictions. Or one could simply place a basic copyright notice along with text such as "Modified versions may be created only with permission from the author. Request permission at [email protected]". However, if the work proves popular, there might be a large volume of requests. | This kind of piracy is unfortunately common. When your copyright has been violated, your available response is to sue the infringer. Yes, this costs money, and yes, many infringers get away with it. In the Free Software/Open Source community, a couple of actors including the FSF, gpl-violations.org/Harald Welte, and the Software Freedom Conservancy have sued GPL infringers. But they can only do that for copyrights that they hold themselves. For example, the FSF holds copyright for the GNU userland, whereas Welte and Conservancy hold copyright for parts of the Linux kernel. They do not hold copyright for your software so they cannot enforce the AGPL license on your behalf. What can be done fairly easily is to file a takedown request with platforms that host the infringing content. Under various safe harbor laws including the US DMCA, a platform is not responsible if they accidentally host infringing content uploaded by users. However, the platform has to take the content down if they're notified that the content is infringing. For example, you could file a DMCA takedown request with GitHub to take down their repository, in case they are using GitHub. The drawback is that a takedown notice can be contested by the alleged infringer, in which case the content is reinstated and you would have to sue. The platform is not allowed to make its own determination about whether you or the infringer is right. | You might be able to use a site like the Internet Archive to preserve the TOC even after the site is shut down. The real liability trap here is if the site does not have the authority to give you this license. If a user uploads a photo that they do not own, and you use it, you are infringing the copyright of the original owner. Innocent infringement is not a defense to liability (although it may reduce damages in some cases.) | If there is a trade mark and if Polaroid owns it and if you infringed it then yes they can force you to remove it. In addition, they could sue you for either damages (i.e. what they lost because of your infringement) or an account of profits (i.e. what you made because of your infringement). That is what trade mark law is for! If the trade mark is registered then this is trivially easy for them to demonstrate. If it is unregistered then it becomes a question of if the mark is clearly recognisable as Polaroid's; IMO they could probably show that it is - those particular border dimensions were distinctive of Polaroid instant cameras for many years. If you want to republish the app, you could probably avoid trade mark issues by allowing users to set the dimensions of the photograph and border, the colour of the border and the location of the caption. | You are asking the wrong question. It should be: When you have downloaded the content and metadata, what are you allowed to do with it and what is forbidden? Somebody owns the copyright to the text and images in the thumbnail. This could be the operator of the third party website, or that site has licensed the content from yet another party. You haven't licensed it from anybody. So you can watch the content in accordance with the TOS, and your computer can evaluate the metadata to do it, but you cannot display it on your own site. Details will differ between jurisdictions, of course. You might also be held responsible for illegal content in the thumb you generate. Follow-up: There seems to be some question of what 'thumbnail' and 'card' mean in this context. This answer assumes a somewhat scaled-down representation of the content of the entire page, not just a collection of actual metadata like content length and expiry. |
How are MIDI files of copyrighted music licensed? Anyone with a music studio can easily download a .midi file from the internet, and then use it to produce a musical track. A midi file exists online for almost every song in the world, and you can do a song title search along with the keyword midi. It's often an entire arrangement, everything one needs to produce a full blown song, all you need is further programming and studio equipment. One triggers various synthesizers to perform the contents of these .midi files, and it sounds like music. Midi files contain every note that every instrument in the orchestra plays. Is this "art" or merely raw data? If I can obtain this data online, I won't have a lengthy data entry phase or need to do any composing, but it doesn't sound ethical or legal. I'd have to get a license from the publisher to sell this new recording, of course. But what about for using someone else's midi from the internet? How do I handle credit or licensing here? | The midi is an artistic work and protected by copyright just as sheet music or an actual recording would be. It’s possible, even likely, that a midi file running free on the internet is itself an infringing copy. If so, any purported licence is worthless. The onus is on you to validate a clear licensing chain from you back to the copyright holder of both the midi file and the music itself - the midi is a derivative work of the music with its own copyright (assuming it was legally created). The midi file has copyright protection even if the original music has entered the public domain (given the age of the technology, no midi file would have had its copyright expire as yet). | Pretty much everything you need to know about the ownership and licensing of your material on Medium is in the Medium TOS you contractually agreed to when you signed up with the service. Basically, you granted Medium a license to use the work, but you did not agree to an exclusive license nor turn over copyright to them. Part of that Terms of Service – Medium Policy reads: Content rights & responsibilities You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. You’re responsible for the content you post. This means you assume all risks related to it, including someone else’s reliance on its accuracy, or claims relating to intellectual property or other legal rights. You’re welcome to post content on Medium that you’ve published elsewhere, as long as you have the rights you need to do so. By posting content to Medium, you represent that doing so doesn’t conflict with any other agreement you’ve made. By posting content you didn’t create to Medium, you are representing that you have the right to do so. For example, you are posting a work that’s in the public domain, used under license (including a free license, such as Creative Commons), or a fair use. We can remove any content you post for any reason. You can delete any of your posts, or your account, anytime. Processing the deletion may take a little time, but we’ll do it as quickly as possible. We may keep backup copies of your deleted post or account on our servers for up to 14 days after you delete it. Pertaining to presenting Medium content in an iFrame on another site, this is reasonably close to not allowing that: You may not do, or try to do, the following: ... (2) access or search the Services by any means other than the currently available, published interfaces (e.g., APIs) that we provide;... You can use Embed Code Generator | Embedly to embed an iFrame of a Medium page on another site. But contacting Medium via the email at the bottom of the TOS would tell you for sure if it is OK. Comments on your pieces on Medium do belong to the owner. And You own the rights to the content you create and post on Medium. appears to cover the idea of copying your material from Medium to your own site. If in doubt, ask them. | A frequent distinction between the two situations is that usually, you buy the actual physical thing (DVD, VHS, CD, book, etc.), but for a purely digital asset, you may be only buying a restricted licence to the asset (on iTunes, for example). In the case where you did buy the digital asset (not simply a restricted licence to it), another difference is that the transfer of a physical item does not implicate the reproduction right1 that is given exclusively to copyright owners. However, transfer of a digital asset often does implicate that reproduction right. See Capitol Records, LLC v. ReDigi Inc.: It is also undisputed that Capitol did not approve the reproduction or distribution of its copyrighted recordings on ReDigi’s website. Thus, if digital music files are “reproduce[d]” and “distribute[d]” on ReDigi’s website within the meaning of the Copyright Act, Capitol’s copyrights have been infringed. It is a different situation if you transfer the actual medium onto which you downloaded the digital content (ibid.): Section 109(a) still protects a lawful owner’s sale of her “particular” phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded. Notes 1. 17 USC §106 (1) "the owner of copyright under this title has the exclusive rights to [...] reproduce the copyrighted work..." This answer assumes US jurisdiction, but Canada's Copyright Act is fairly similar to 17 USC and similar holdings have been made in Canada. | By "buying the song" on Gumroad you don't actually buy the song, you buy the right to do specific things with that song. I couldn't find the exact license terms, but for 800 Yen (about $6) for a whole album I highly doubt that this will include much more than the right to listen to the song on a private device. The rights to publicly perform, reproduce, redistribute, use commercially etc. usually cost a lot more. So if you want the rights to use the song in your own video, you will have to negotiate the purchase of a license which allows you to do that with the creator. Or if they reassigned their copyrights to a music label or copyright collective (which some music artists do), with that organization. There are some exceptions in the copyright laws of some countries where you can use parts of a song without a license. For example, the "fair use" exception in US copyright law if you review, discuss or analyze a song. But such exceptions usually don't apply if you use the song as background music, adapt the song into an own work or even just reupload the song on your own channel. | The copyright Act gives copyright owners certain rights: right to reproduce the copyrighted work right to prepare derivative works based upon the work right to distribute copies of the work to the public right to perform the copyrighted work publicly right to display the copyrighted work publicly The audiobook you create from a copyrighted work is a derivative work (perhaps it is a reproduction; for the analysis it does not matter). It works the other way also. A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. It is a violation of the copyright to create derivative works without permission. The commercial nature of the derivative work does not come into play in this situation. Commercial use might be an issue in a fair use defense, but fair use is not applicable based on these facts. Fair use might apply given facts such as: Ten students own copies of the printed work. These students are blind. A teacher reads the book and provides the recording to the students. | The answer depends in part what venue you're talking about, e.g. Reddit, Facebook etc. The details are revealed somewhere in the Terms of Service for that venue. The general pattern is that you are allowed to use that venue, provides you grant permission for the service to do what they do with your content. You cannot legally send them a take-down notice for your stuff, because a take-down notice requires you to say that the stuff was posted without your permission (and that is false – and you can be punished for making that statement). There could be a venue where they do not hold you to an irrevocable license, in which case you could revoke that permission (but not Reddit: you granted them a "royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, perform, or publicly display your user content in any medium and for any purpose, including commercial purposes, and to authorize others to do so"). I've seen a site that actually asserts ownership of user-contributed content (I don't know if their TOS ended up being litigated) – if is not at all hard to write a TOS that includes transfer of copyright, rather than granting of a license. The only hard parts are (1) figuring out what you want in terms of permission to use and (2) whether your answer to (1) means nobody will use your service. SE and Reddit TOS probably are as close as you need to get for what you describe. | I'm not a lawyer; I'm not your lawyer. I would interpret the Copyright Board's interpretation in relation to tariffs when musical works copied for private use only, as the document's scope does not appear to extend beyond that. However, in BMG Canada Inc. v. John Doe, [2004] 3 FCR 241, a consortium of record industry corporations attempted to request confidential ISP account holder information. Essentially, the plaintiffs failed to bring adequate evidence to prove the magnitude of copyright infringement; additionally, it is specifically stated at [24-5] that: Subsection 80(1) [as am. by S.C. 1997, c. 24, s.50] of the Copyright Act provides as follows: 80. (1) Subject to subsection (2), the act of reproducing all or any substantial part of (a) a musical work embodied in a sound recording, ... onto an audio recording medium for the private use of the person who makes the copy does not constitute an infringement of the copyright in the musical work, the performer's performance, or the sound recording. Although the Copyright Modernization Act, did, in fact, introduce a number of amendments, Subsection 80 still reads as it does when the BMG case was decided. Since this case, I can find no court that has found this ruling to be invalid, and no cases which have considered and not applied this subsection. There is also Subsection 29.22 (1) (which applies to all works): 29.22 (1) It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if (a) the copy of the work or other subject-matter from which the reproduction is made is not an infringing copy; (b) the individual legally obtained the copy of the work or other subject-matter from which the reproduction is made, other than by borrowing it or renting it, and owns or is authorized to use the medium or device on which it is reproduced; (c) the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented; (d) the individual does not give the reproduction away; and (e) the reproduction is used only for the individual’s private purposes. Subsection 80(1) creates a special exemption purely for musical works, and so the less restrictive conditions there should be found to apply to them instead. On the basis of the case above, and my consideration of the Copyright Act, I would find that reproduction of a musical work does not constitute copyright infringement, pursuant and subject to s 80(1) of the Act. | 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. |
criminalise Moon landing deniers Can people go to prison for denying a historical event?! like people who deny moon landing, or people who deny jesus? I am taking the example of denying holocaust in WWII. it is a historical event that people wrote about and there are different stories about it. similar to Moon landing, it is a historical event that people witnessed on TV and we have astronaut who died for that and other astronauts who did walk on moon. why it is illigal to deny holocaust in many countries while it is ok to deny moon landing in these countries?!!! | Countries define free speech protections differently, so it’s difficult to give a generalized answer. Nonetheless: the main razor used when limiting speech is harm. Most countries that have made denying the Holocaust illegal have done so out of a claim that such denial harms minority communities, as well as the national community. Denying that the moon landing happened, however, is unlikely to harm anyone. While it is rather silly, it is not sufficient to take away somebody’s right to free speech. | What is the status of songs that glorify illegal activity in different countries? germany Depends on the crime and the lyrics. For historical reasons, glorifying genocide is banned. Calling for crimes to be committed against individuals is banned. More generic 'gangster rap' pretending to a criminal lifestyle is allowed. The exact dividing line between the two comes out in court precedents, which weigh the freedom of expression against the freedom from insults and criminal threats. Are there any countries where my question would be illegal to write? Sure. Consider North Korea, where those lyrics would be evidence of decadent Western speech patterns and get punished by two years to life (or more, if the police has a quota to fill). | Germany would not extradite to Saudi Arabia. India and Kuwait might, because they and a few other countries have extradition treaties with KSA. To put this squarely in the realm of illegal (it's not clear that accidentally encountering Shiite material online is a crime in KSA), assume that the person deliberately watched porn then fled to India. Generally speaking, this is a severe enough offense to allow extradition under the India-KSA treaty. However, India gets to review the request for exceptions. Under article 3, the central question is whether this is a political crime. There are enumerated acts that are not deemed to be political. Watching porn is not a listed exception. Accordingly, India could determine that this is a political crime, and refuse to extradite. If the crime is advocating atheism, however, then under Article 3 (1)(j), this is presumably not an excludable offense, because atheism is officially terrorism in KSA per Royal Decree 44 (I can't find an official copy). On the third hand, India may still reserve the right to apply their definition of terrorism. Even if there were an extradition treaty between Germany and KSA, German law Act on International Cooperation in Criminal Matters of 23 December 1982 §3(1) would currently preclude extradition because Extradition shall not be granted unless the offence is an unlawful act under German law or unless mutatis mutandis the offence would also constitute an offence under German law. There might be acts that are offenses in both countries, but not e.g. "watching porn" or "advocating atheism". The boundaries of blasphemy under German law are not clear to me. Section 166 of the Strafgesetzbuch imposes a maximum of 3 years in prison for blasphemy, so it could be an extraditable offense. Sect. 6 of the "Cooperation" law also sets forth exclusions for reasons of political and religious persecution. Also, KSA would have to assure Germany that the death penalty would not be imposed. | The NYT article implies that she has used social media in the past to get her victims to believe her fake back story. She is being released from detention, and the restriction on her using social media is not tied to her expressing a particular viewpoint. Courts have repeatedly held that the Government can justify incidental limitations on First Amendment freedoms if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest ( U.S. v. O'Brien, 391 US 367 - Supreme Court 1968). One such compelling interest is the effective administration of criminal justice (U.S. v. Spilotro, 786 F. 2d 808 - Court of Appeals, 8th Circuit 1986). For instance, speech restrictions can be tied to the purpose of preventing a defendant from committing further crimes while released. | 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. | united-states Since "lying" is not a clearly-defined legal concept, we need to look at a specific kind of (non)statement. Some lies are plainly illegal, for instance saying in the context of a sale that "this column is made of pressure-treated lumber" when in fact it is make of sand and Elmer's glue is fraud. A receptionist being told to say "Mr. Smith is at a conference in New York" when he is actually drunk in Chicago is a legal lie. Now the question is, who can refuse to tell this lie (without suffering employment consequences), and on what grounds? Generally, in the US you can be ordered to tell such a legal lie as part of your employment duties. If I refuse, I can be fired. If you refuse, you can request a reasonable accommodation under Title VII of the Civil Rights Act of 1964, since you proffer that your religion requires you to tell the truth / forbids you from telling a falsehood. If you make a claim for a religious accommodation, then the issue becomes whether there is a reasonable alternative. Such an accommodation might be that you instead say "Mr. Smith is not available"; or perhaps someone else who does not have a religious objection will be forced to act as receptionist for the day. This is specifically about religion. "I don't want to" or any similar idea does not provide protection against being fired. However, bear in mind that there is no official list of approved religions and their beliefs which the courts will refer to in determining whether your refusal was protected. If you claim "As a Pastafarian, I can't lie", the courts will not accept the premise that declaring yourself to be Pastafarian (a parody "religion") is valid. The available governmental resources on the fine line between general moral code and religious beliefs are quite sparse. | It seems to not be allowed for a UK police to lie. The Police and Criminal Evidence Act 1984 makes it illegal for the police to mislead a suspect in order to make them believe that the police have evidence which they do not or that the evidence they have is stronger than it is, or that there is a possibility of leniency (for example in return for ‘cooperation’) where none exists. Realistically, there is no reason that a police officer might lie to a suspect during interview. Also see from innocenceproject.org: The law does not allow lying to suspects, under any circumstances. | The key difference is the motivation for denying service. Generally, a business can deny service for almost any reason, or for no reason, and doesn't have to explain its reasons for doing so. However, laws may make it illegal to deny service for certain specific reasons. The federal Civil Rights Act of 1964 forbids discrimination on the basis of race, color, religion, sex, or national origin. So a business may not deny service for those specific reasons. In the Colorado case, there was a similar state law that also forbids discrimination on the basis of sexual orientation. If they deny you service because of your political views, or the way you dress, or because they just plain don't like you as a person, that's legal. If they deny you service because of your sex, or race, or on the other bases in the Civil Rights Act, that's illegal. Obviously, since a business doesn't have to say why they're denying service, or could lie about the reason, this could make it hard for a plaintiff to prove that denial was in fact based on (e.g.) race. They might be able to do so by finding out about internal discussions within the business, or by showing a pattern of denial to customers of a particular race. In Masterpiece Cakeshop, the baker made it easy by explicitly stating that he was denying service because of the customers' sexual orientation, or at least because of the same-sex nature of the marriage in question. This would appear to violate the Colorado state law. Had he just said no without giving a reason, it would have been harder for the plaintiffs to make their case. (A state commission held that the baker did violate the law, but the US Supreme Court reversed because, they said, the commission had improperly taken the baker's religion into account.) But there is no such law that forbids discrimination on the basis of political views, so Alex Jones can't make a similar case. |
Is it legal to redefine a term against common sense in a contract Can the writer of a contract attempt to trick the signer using defined terms? Is such a contract binding or void, and can the writer get into trouble for doing so (eg. for misrepresentation)? Two types of scenarios that I want to ask about: When a defined term in the contract carry a much narrower, or much broader meaning than the common meaning. For example, can a contract define a term "Image" (as in a picture) to mean any computer file, or to mean any image showing a red flower? When the defined meaning is completely incompatible with the common sense meaning. For example, can a contract define an "Text file" as a file with the .png extension? Does the answer change if the defined term, when used normally, starts with a capital letter (eg. if "SVG file" is defined as a .png file), so the reader is less likely to suspect the term has been defined in the contract itself? Does the answer change if this happened in another legal document, such as a EULA, where the person agreeing does not have a chance to call the writer of the document out? | Is it legal to redefine a term against common sense in a contract? Generally speaking, yes. What matters is that the contract be clear enough for the parties to be aware of the terms and conditions to which they are committing. Both of the scenarios you outline seem lawful. They are binding to the extent that the definitions & language therein duly inform the parties of the substance of the contract. Definitions in a contract are most pertinent where the meaning of a term is intended to supersede and replace the commonplace meaning thereof. A contract would become null and void if the substance of that contract contravenes legislation. If legislation outlaws not only the effect of a clause but also its meaning, then the [un-]lawfulness of that clause is not altered simply by crafting definitions of terms. In other words, laws or legislative intent cannot be elluded by relabeling concepts in a contract. Whenever lawful, the attempt to trick a party with tactics (such as the use of uppercase you mention) is likely to be voidable by that party. The rationale is the same: The draftsman's attempt to confuse the user contravenes the contract law tenet that the parties knowingly enter the contract at issue. Notice that in the preceding paragraph I wrote "whenever lawful" rather than "although lawful". The reason for that choice is that, in some contexts, the draftsman's tricky attempts might constitute a deceptive practice and thus be in violation of the law (for instance, consumer protection laws). | Ah, the old "is this contract invalid (but still legally binding for the other party)"? You signed a contract with someone else. You do not dispute that it was you who signed the contract and agreed to it. You made it abundantly clear that there was a contract between you when you allowed him to do the work. This means one of the following was true: There was a mistake in the contract. What was followed was how it was intended. You signed a contract containing false information in an attempt to defraud someone. One of these will end up much worse for you. The fact that the work was not completed to the agreed upon standard could be considered a breach of contract- this is something a small claims court would decide. | This language is almost certainly included in an attempt to make the agreement comply with the Charter of the French Language. The Charter is the legal document that sets French as the official language of the Canadian province of Quebec. Chapter 7, paragraph 55 of the Charter states that adhesion contracts, such as software licenses, must be in French, but "may be drawn up in another language as well at the express wish of the parties." Because the law seems to require a French version "as well" as the English version, it's not clear that the contracts in question are in compliance--but the language is straight out of the Charter, so it is clearly at least an attempted compliance with that law. The French is included presumably because otherwise a Francophone Quebecois end user might try to invalidate the license by claiming that his or her waiver was not well-informed. | "There's no ... contract" - wrong! The emails are the contract, see What is a contract and what is required for them to be valid? If you didn't agree on which laws will apply then that is a matter for the court to determine. In general, they will tend to look at where the bulk of the work was done - since you are being charged I assume the work was done in the UK so probably UK law applies, noting that the UK is actually 3 different jurisdictions (England & Wales, Scotland and Northern Ireland). That said, many jurisdictions have non-excludable laws around contracts, particularly consumer contracts that apply irrespective of the substantial law applying to the contract. It is therefore possible that you apply English contract law subject to, for example, Australian Consumer Law. Usually any consumer protection law in the vendor's jurisdiction will also apply. General contract law dictates that where a price was not agreed a reasonable price must be paid. If its reasonable that the editing should have been included in the original price charged then you don't have to pay more but if it isn't then you have to pay a reasonable amount for it. There is generally no requirement for estimates or any other method of determining the price - you just have to do what's reasonable. However, consumer protection law generally imposes more obligations on a business than general contract law. It is likely that your contract is ambiguous - courts will endeavor to fill in any ambiguities to make the contract work. techniques include read in implied terms to give "business efficiency", from custom or business usage (e.g. if particular industries typically deal with particular issues in particular ways), from previous dealings (i.e. what the parties have done in the past), from statutes, whatever works to resolve uncertain, meaningless or ambiguous terms, from the express words used or from the nature of the contract or from the common intention of the parties (i.e. the court might ask you what you meant). "Breach of contract" is a very broad term - it simply means that one of the parties hasn't done what they were required to do and allows the other party to sue for damages. | canada1 The judgment you have read about is South West Terminal Ltd. v Achter Land, 2023 SKKB 116. The judge did not hold that "👍" is categorically considered to be binding agreement. The judge applied the modern approach to contractual interpretation outlined by the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 and Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22. This requires judges to interpret the text of the contract and indicators of acceptance in light of the surrounding circumstances. Regarding interpretation, see Sattva: a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning Regarding formation, see Aga (internal citations removed): [36] For present purposes, it will suffice to focus on the requirement of intention to create legal relations. As G. H. L. Fridman explains, “the test of agreement for legal purposes is whether parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract”. This requirement can be understood as an aspect of valid offer and acceptance, in the sense that a valid offer and acceptance must objectively manifest an intention to be legally bound. [37] The test for an intention to create legal relations is objective. The question is not what the parties subjectively had in mind but whether their conduct was such that a reasonable person would conclude that they intended to be bound. In answering this question, courts are not limited to the four corners of the purported agreement, but may consider the surrounding circumstances. See also Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corp., 2020 SCC 29, para. 37: the offer, acceptance, consideration and terms may be inferred from the parties’ conduct and from the surrounding circumstances The conclusion about the 👍 emoji was case-specific. See paras. 62-63: [62] ... Again, based on the facts in this case – the texting of a contract and then the seeking and receipt of approval was consistent with the previous process between SWT and Achter to enter into grain contracts. [63] This court readily acknowledges that a 👍 emoji is a non-traditional means to “sign” a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a “signature” – to identify the signator (Chris using his unique cell phone number) and as I have found above – to convey Achter’s acceptance of the flax contract. 1."Even if you supply a jurisdiction tag, we expect and encourage answers dealing with other jurisdictions – while it might not answer your question directly, your question will be here for others who may be from those jurisdictions." | 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. | On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back & forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article. | What would the implications be if an employee were to refuse signing an amendment and insist on what was stated in the original signed contract, even if he/she knows it's a mistake? The contract is voidable unless the employer's subsequent conduct reinforces its legitimacy. The employee's attempt to take advantage of something he knew was a mistake contravenes the covenant of good faith and fair dealing on which contracts are premised. South African contract law is not an exception to this: The law of contract underpins private enterprise in South Africa and regulates it in the interest of fair dealing. The employer can resort to records of prior communications between the parties to prove that the stated compensation was intended as yearly, not monthly. Even if those records are not available in a judicial dispute, the employee would have a hard time persuading a court that the salary that was agreed upon is 12 times --or exceeds by a factor of 12-- the market rate for a job position of similar type. |
Can women also go shirtless in public legally? Do women have the same rights as men to walk on the beach or sidewalk topless where men are also walking bare-chested without being discriminated against? If a woman is arrested or asked to leave by enforcement, but not the men, is that blatant sexual discrimination? Would that be a lawsuit that can be pursued? Let us say this issue does go to the Supreme Court. Would women be allowed walk half naked, men to not be allowed to walk with their breasts out (yes some men do and lactate) and/or allow some public places made acceptable like half nude beaches or areas of town where men and women can enjoy the freedom to be shirtless together? How would this play out? | In April 2017, a US District court on Colorado ruled that a law prohibiting women from exposing their breasts in public was an unconstitutional discrimination against women. The law was ordinance 134 passed by Fort Collins, Colorado in May 2016. The group opposing it was led by the activist organization "Free the Nipple." This ruling is not binding in other states, however. See this Snopes report for more details. The case is being appealed to the Tenth Circuit. A similar ordinance has been taken to state court in New Hampshire on similar grounds as described in this AP story and this US News story A similar claim in Illinois in 2017 resulted in a law against 'public indecency" being upheld (in Tagami v. City of Chicago) at the Federal Appeals Court level, according to this Reason story A similar law in Ocean City, Maryland, was challenged in federal court in the summer oif 2018 according to this news story. in 1991 in United States v. Biocic the US Court of Appeals for the Fourth Circuit upheld a similar law against a similar challenge. This Munknee article lists states where a woman going topless is legal and illegal. According to a Time Article (which gives a similar list): The vast majority of states actually have laws on the books making clear that women can’t be arrested under state law solely for being topless in settings where it’s OK for men. But many local ordinances ban the practice anyway. In short, it is not yet fully settled if there is a US constitutional right for a woman to go topless, and state and local laws vary widely. Local laws do not always conform to the laws of the state, but would probably require a court challenge to enforce the state law. Laws in other countries will vary, but many places ban such exposure. | Let's put to bed the myth of privacy that is at the heart of your question: in R v Sotheren (2001) NSWSC 204 Justice Dowd said “A person, in our society, does not have a right not to be photographed.” In general, you can take photos of people; statues have even less privacy rights. There are limitations mainly related to voyeurism and commercial use, which are discussed at http://www.4020.net. | 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. | Yes, certainly. A prominent example was Lawrence v. Texas. The defendants were charged in state court with "deviate sexual intercourse". They moved to dismiss on the grounds that the statute was unconstitutional. Their motion was denied and they were convicted and fined; the denial was upheld by the state's court of appeals. They then appealed to the US Supreme Court, which eventually ruled that the statute was indeed unconstitutional. A defendant likely wouldn't have standing to sue the state for enforcing the law in general, only for enforcing it on the defendant himself. | What do you mean by "a public building"? Just because a place is owned by the public, doesn't mean anyone can go there any time they wish. Military bases, firehouses, and jails are owned by the public, but many of these have limited access to the public. It may be open to the general public, but that does not mean restrictions cannot be put into place, either on times, or activities, or individuals. For example, public parks often have time and activity restrictions; schools have the power to restrict individuals from their premises, either specifically or by general category. As a general point of law, the owner of any property, or their agent, can order anyone without the right to stay (e.g. not a co-owner or tenant), and that person must depart, otherwise that person is tresspassing. Assuming that the Senior Center is owned by the town, it is probable that the Administrator is empowered to act as the town's agent in this matter. Now, since this "No Trespass order" is specifically directed at you, there is a reason behind it. It may be something you've done. It may be that complaints have been received about your behavior. It may be an actual abuse by someone who doesn't like you. We have no way of knowing. It the order itself doesn't give you a hint as to why, you can ask the town administrator for the reason. As for being against your rights, there is nothing inherently illegal about this situation(that is, an agent of a property owner exercising the latter's right to prohibit an individual from said property), but some of the details, especially why it was specifically applied to you as an individual might be a civil rights violation. | In most states, the answer would be less clear, as First Amendment protections begin falling away quickly when you enter private property. In California, though, there is some strong precedent indicating that this behavior would be protected. In Robins v. Pruneyard Shopping Center, 23 Cal. 3d 902 (1979), the California Supreme Court held that "the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution." That case adopted the reasoning of a dissent in a previous case where the court had rejected such an argument: It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations ... would not markedly dilute defendant's property rights. I'd bet there is case law addressing religious leafleting, as well, but I don't know California law well enough to cite to it. Even if there isn't, though, the First Amendment's requirements of content-neutrality in government decisionmaking would probably require that the same protections be extended to religious speech. Of course, the answer to these kinds of questions always depends on the specific facts, requiring you to engage a lawyer to get a reliable answer. For a lower cost, you could also just ask the local police if they would enforce a request from the property owner to have you removed. | There’s some truth in it When a matter, particularly a criminal matter, is before a court or sub judice, public comment is forbidden and may be contempt of court unless they are “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.” Technically, it only applies to media reporting (probably including social media) and only while the proceedings are active. Proceedings become active when there is an arrest, oral charge, issue of a warrant, or a summons. Notwithstanding, there is nothing preventing an organisation having a “no comment” policy on any matter once there is police involvement. | "Public place" is not a good description of a bar. "Public accommodation" would be a better description. But it isn't a public accommodation 24-7-365(366). It's only a public accommodation during the hours it is open to the public. Presumably the owner is free to close it to the public and rent it to some private group. During the rental period, it's up to the private group to decide who to admit. (The owner would have a veto for anyone who can't be admitted, for example, because the person isn't old enough to enter a bar.) The private group is not bound by the policies that prohibit unfair discrimination by public accommodations. |
Why does the Wikipedia article on "sex offender" list "sexting" as a crime? Some of the crimes which usually result in a mandatory sex-offender classification are: a second prostitution conviction, sending or receiving obscene content in the form of SMS text messages (sexting) Source: https://en.wikipedia.org/wiki/Sex_offender Wait... How is "sexting" a "sex crime" or "sex offense"? Is it implying that it's done to a minor? Has the article been vandalized? | 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. | The law of Washington is probably typical. Under RCW 9A.56.110, "Extortion" means knowingly to obtain or attempt to obtain by threat property or services of the owner, and specifically includes sexual favors. By RCW 9A.56.130(1), A person is guilty of extortion in the second degree if he or she commits extortion by means of a wrongful threat as defined in *RCW 9A.04.110(25) (d) through (j). Then looking at the relevant definition of threat (please note that there is a numbering error in the statute, that should be (28), I don't know if they will fix it), it says (28) "Threat" means to communicate, directly or indirectly the intent:... (e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or (f) To reveal any information sought to be concealed by the person threatened; Second degree extortion is a class C felony. It is not first degree extortion, since that requires the threat to be (a) To cause bodily injury in the future to the person threatened or to any other person; or (b) To cause physical damage to the property of a person other than the actor; or (c) To subject the person threatened or any other person to physical confinement or restraint; Washington does not include a category of rape by extortion, though I've heard rumors that there is such a crime in some states. (It is not rape by forcible compulsion, second degree rape, because forcible compulsion is defined as "physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped": that is, there has to be actual or threatened physical force) | Section 170 of the Online Safety Bill proposes a new section 66A in the Sexual Offences Act: 66A Sending etc photograph or film of genitals (1) A person (A) who intentionally sends or gives a photograph or film of any person’s genitals to another person (B) commits an offence if— (a) A intends that B will see the genitals and be caused alarm, distress or humiliation, or (b) A sends or gives such a photograph or film for the purpose of obtaining sexual gratification and is reckless as to whether B will be caused alarm, distress or humiliation … (5) References to a photograph or film also include— (a) an image, whether made by computer graphics or in any other way, which appears to be a photograph or film … So the law doesn’t define or prohibit the sharing of “deepfakes” as such. What makes the sharing illegal is the sender’s state of mind and the recipient’s potential “alarm, distress or humiliation.” Subsection (5)(a) then makes it clear that the law applies even if the shared image is computer-generated and therefore not really “a photograph or film of any person’s genitals.” | It depends, in part, what is meant (and what can be proven) by D's intent: no apparent motivation to harm V Revenge porn, or more accurately, "Disclosing, or threatening to disclose, private sexual photographs and films with intent to cause distress" contrary to section 33 of the Criminal Justice and Courts Act 2015 which states: (1)A person commits an offence if— (a)the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears, (b)by so doing, the person intends to cause distress to that individual, and (c)the disclosure is, or would be, made without the consent of that individual. If there is no intent, then the offence is not committed. If there is intent to cause distressto V, then setion 35 needs to be considered, especially subsection (2): Meaning of “private” and “sexual” (1)The following apply for the purposes of section 33. (2)A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public. (3)A photograph or film is “sexual” if— (a)it shows all or part of an individual's exposed genitals or pubic area, (b)it shows something that a reasonable person would consider to be sexual because of its nature, or (c)its content, taken as a whole, is such that a reasonable person would consider it to be sexual. I cannot find and caselaw or guidance on the particular issue - i.e. whether or not V's commercial sales of her own images would fall within this definition - and as D's intent is not clear, it would probably be a matter for a jury to decide. | Surely such a well meaning albeit naive driver wouldn't stand a chance in court if they said that it's because they've a section 230-like protection. Because Section 230 of the Communications Decency Act explicitly protects computer service providers from such charges. A driver is not a computer service provider, and the US legislature has never voted to offer similar protection to drivers picking up hitchhikers. You say that an email can easily be classified as fraudulent, but that's not true. Spam detection has gotten pretty sophisticated, but they still get plenty of false positives. They were a lot less sophisticated back in 1996 when the Communications Decency Act was passed. | What you're asking about is extraterritorial jurisdiction, and it will depend on the country and crime(s) involved. As an example, under Australian law, it is a crime to engage in sexual activities with minors barring specific exemptions, which are not relevant to this example. There are countries where the age of majority is less than that in Australia. If you were to travel to this country, you are not necessarily committing a crime there. However, Australia's sex tourism laws make it a crime to do this anywhere in the world. This is enacted (I believe) under the foreign affairs power of the Commonwealth Government. It will largely depend on the legal system of your country, as to whether laws have extraterritorial effect. In general, however, laws do not have extraterritorial effect unless explicitly stated. | Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision (United States v. Hudson), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal). | This is the common law crime of battery - “any unlawful and or unwanted touching of the person of another by the aggressor, or by a substance put in motion by him." Many jurisdictions have abolished common law crimes and codified criminal behavior - it is a subset of what is commonly called “assault” and may be codified in that section. |
Stealing through multiple people Person b steals a car from person a by forging the registration ie a civil manner. Then person c steals the car. How would a civil lawsuit work? Would person a sue b and c at the same time? Or sue them separately? Is the transfer from b to c conveyance even though b didn't consent? Person b now has no assets so suing them alone is useless. | 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. | 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. | 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. | 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. | You have the right to notify the owner of the car of their vehicular trespass and the consequences of that. You do not have the right to damage the car in giving said notice. You have the right to offer to clean the gum off whatever part of the car you stuck the notice to. If you succeed in cleaning it,the other party will not have a legal cause of action, in all likelihood, since there is no damage (though with a bit of imagination they might come up with some 'missed business opportunity' loss). The court would probably find your choice of sticker to be negligent (put the notice under the wipers? use painter's tape -get some if you don't have any). The rationale 'we had no other choice' holds no water: there are alternatives. 'Criminal Damages' is a concept in UK law, but it relates to willful damage such as vandalism, not accidents. It would be an issue if you had planned to cause damage, but that seems not to be the case here. | Colorado statute 42-6-206 imposes disclosure requirements on the sale of vehicles with salvage titles. That you didn't know it was a salvage does not seem to be of concern to this particular statute. This means that you are potentially entitled to redress against the people who sold you the car as well, provided the sale occurred in Colorado and they failed to disclose it to you (i.e., you didn't just forget about it in the intervening years). Given the presence of a law specifically covering your circumstances, it may be worth consulting with a local attorney to see what your obligations are. There may be mitigating circumstances, but they are not currently obvious to me if they're there. (conventional wisdom in the industry is that all private sales are "as-is" with no implied warranty of merchantibility and no recourse for a buyer who doesn't do due diligence -- I was shocked to find a statute specifically protecting buyers of salvage vehicles) | 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. | 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. |
Can I play the famous song "The Stars and Stripes Forever" in my mobile phone commercial game ? Is there any copyright issue? The song " The Stars and Stripes Forever " is a very famous song in the US. The song was composed by John Philip Sousa in 1896. By a 1987 act of the U.S. Congress, it is the official National March of the United States of America. Here is the link to Wikipedia about this song: https://en.wikipedia.org/wiki/The_Stars_and_Stripes_Forever Here is the YouTube link so that you can listen to the song: https://youtu.be/a-7XWhyvIpE?t=59 My questions are: (1) If I hire some musicians to play this song so that I can record the song, and then play it on a commercial mobile phone app that I develop for sale. Is there a copyright violation in this case ? For example, I want to develop a commercial mobile phone app that displays fireworks and plays this song for the Independence Day (July 4th). (2) Who owns the copyright of this song ? Is it true that no one owns the copyright because the song was created a long time ago (or more than 75 years ago ? So, does this mean the song is in the public domain now, and anyone can use it in any commercial application ? (3) Generally speaking, are there any other sensitive issues such as cultural or political issues if software company plays this song in a commercial app for sale (in a respectful and appropriate manner) ? Thanks. | It depends on the terms of your contract with the musicians. Copyright in the performance belongs to the performer so you need to ensure the copyright is transferred or appropriately licensed to you. It is public domain. Copyright for US works published before 1978 is a maximum of 95 years from date of publication. Although written on Christmas Day 1896 it wasn't published until 1897. Copyright, therefore, could have lasted until 31 December 1991 at most. No. | Copyright Your code, and the display it produces, is automatically protected by copyright the moment it is "fixed in a tangible form", which includes saving it in a computer file. In the US, a copyright notice has been optional since the effective date of the 1976 Copyright act, and in most other countries even longer. This is mandated by the Berne Copyright convention, and almost every country follows Berne, either directly or via the WTO's TRIPS Agreement. If an original work was posted to a web site, and then copied and re-posted without permission, the owner could send a takedown notice to the site where it is unlawfully posted, or that site's host. Or the author could sue for copyright infringement, and possibly collect money damages or get a court order forbidding further use of the content, or both. To sue in the US, the owner must first register the work with the copyright office, which requires payment of a fee. Trademark Unless you sell your program, or offer it for sale or rent, or sell or offer for sale something connected with it, such as a service, there will be no trademark. A trademark is a word, phrase, image, or design that identifies a particular product or service in the commercial marketplace. It serves to distinguish the trademarked product or service from other possibly similar things offered by other sellers. Product names, business names, slogans, logos, distinctive packaging, or design can all serve as trademarks. Once a person or business has acquired a valid trademark, others cannot, lawfully, use that mark or a closely similar one in ways that might confuse potential customers or members of the public about which goods come from which source, without permission. One also cannot lawfully use someone else's mark or a confusingly similar mark to suggest endorsement, approval, sponsorship or affiliation, unless one has permission from the trademark owner. To do either of these is to commit trademark infringement. If a trademark is infringed the owner may sue and possibly collect money damages, or get a court order against further infringement, or both. In some countries, only registered trademarks are protected against infringement. In others, such as the US, a degree of protection can be achieved just by using a mark "in trade", that is, commercially. Valid copyrights are valid all over the world, automatically. Trademarks, however, must be protected country-by-country: what is protected in one country may well not be in another. Trademark registration is generally separate for each separate country where the trademark is used. Unlike copyrights or patents, trademarks do not automatically expire after a fixed period. But if an owner stops using a trademark "in trade" it may be canceled for lack of use in a relatively short period, as short as 5 years in some countries. | The opera may be in the public domain, but unless the performance is from several decades ago, which I assume is not the case, the performance is not in the public domain. The video therefore has copyright protection of its own. The use to which you want to put the video does not sound like fair use to me, although as the other answer notes that's impossible to determine without knowing more than you've told us, but the fact that the composition being performed is in the public domain is not a particularly important consideration in the analysis. | I don't believe you could do that without infringing copyright. The Star Wars theme is a copyrighted piece of music, and creating a transcription of it would be considered a derivative work. Only the copyright holder can authorize such derivative works. Cost doesn't factor into it at all. https://en.wikipedia.org/wiki/Derivative_work | 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. | If you do, can you build/run it without being bound by said license? No, you cannot. Because there is no way to "build/run" it without making a copy. You copy the sourcecode, before you can run your compiler. That is the copy you are making, not copying the file that results from this process. A valid question might be, are you bound by the license? Well, that is up for lawyers and a court to decide, but in all countries I know, copyright is automatic for anything worth copying. And the copyright holder can grant licenses to people to allow things. So arguing you are not bound by a specific license would mean you would argue that you are bound by the legal default, which in most countries is "You cannot copy that. At all. Unless you have explicit permission". That argument would sound like "I stole all 10, because the offer of buy-one-get-one-free was not legally binding". Maybe it wasn't. But that doesn't mean you get to do something unrelated illegal instead. Now, there are many exceptions for "personal use". You can sing any song in the shower. I would assume you can compile any program there, too. You just cannot use that program for anything worthwhile, the same way you cannot record your song in the shower and sell it. | See Golan v. Holder 565 U. S. ____ (2012). The question was whether Congress could pass a law that caused works in the public domain to regain copyright. The Supreme Court held that: The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. ... Historical practice corroborates the Court’s reading of the Copyright Clause to permit the protection of previously unprotected works. So, yes, works can come out of public domain and into Copyright protection. What about people who had been relying on the works not having copyright (i.e. people who had created derivative works, etc.)? That depends on how Congress intends the hypothetical law to apply to them. In the law in question in Golan v. Holder, Congress planned ahead for this, and included provisions for it in the law (quoting from Golan v. Holder): Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce—either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. After that, reliance parties may continue to exploit existing copies for a grace period of one year. Finally, anyone who, before the URAA’s enactment, created a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. Last, could Congress extend copyright for 10,000 years? In principle, the Supreme Court has not said anything against this, but they have indicated that there is some line beyond which a copyright term would no longer be considered a "limited time" as required by the Constitution. In Golan v. Holder they mention in passing hypothetical successive re-applications of Copyright to a work after it expires, calling it "legislative misbehavior": the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. And in Eldred v. Ashcroft, they mention in passing hypothetical unlimited successive extensions of copyright, each of limited time, again calling that "legislative misbehavior": Concerning petitioners' assertion that Congress could evade the limitation on its authority by stringing together an unlimited number of "limited Times," the court stated that such legislative misbehavior clearly was not before it. I could imagine a court holding that the "limited times" clause in the Constitution does not permit Congress to extend copyright for 10,000 years, which is longer than the existence of the U.S. or any countries or even civilizations that the founders were aware of at the time of the Constitution's writing. | Do you have an explicit permission by the artist? Does the artist give a blanket permission to anyone which covers this kind of use of their work (a license)? If no, then you commit a copyright violation when you use their work for your blog. This applies to practically any country which signed the Berne convention which is almost everywhere in the world. Having no commercial interest is usually not an excuse to violate copyright. Regarding which jurisdiction applies when you, your website and the copyright holder are in different countries: I opened a new question about this. |
Motorcycle price dropped less than a year after purchase. Can I get a refund? I purchased a motorcycle in 2018. It was a new model. Towards the end of the year Honda launched yet a new version and to get rid of the 2018 stock dropped the price of of about 15% (£1000 from the original price). I bought the bike on a PCP finance and because of the price drop the bike is now worth less than the remaining amount. Can I ask for compensation? Is there any rule about price drops? NOTE FOR CLARIFICATION: I understand goods depreciate after purchase and I would be OK with a "normal" depreciation. The thing is that Honda has done something unusual. My motorbike should be worth around £3500 now but because Honda HQ (not the single dealer) has announced worldwide a price drop of the model I purchased, my bike is now worth only £2500. Since I purchased the bike with PCP, the finance company guarantees the value of the bike at the end of the contract. At the end of the contract my only option now will be to return the bike, otherwise I will have to pay for a difference that is nowhere near its actual value. | You paid a higher amount so you got to drive the latest model for a year. I can buy a lower amount right now, but I only get to drive last year's model. Or I can pay a higher amount to drive the latest model again. That's life. I have a Wii. I didn't buy it when people queued up for it, but when the shop was selling them off for half the price. That's life. You pay more for the latest and greatest, and then it gets cheaper. The protection you are talking about is this: If the shop advertises a motorbike for £8,000 and when you go into the store the price is suddenly £10,000 then there is some protection in place. The protection means the shop will get a major telling off from trading standards if you complain, and possibly a fine. It doesn't mean you get the motorbike for £8,000. And it most definitely doesn't mean you get money back when they reduce the price a year later. | 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. | This is possibly but not necessarily fine. The data controller (the garage) is responsible for safeguarding your personal data. They must take appropriate safety measures, but this depends a lot on their own risk assessment. For example, to protect the data from being used by employees for their personal purposes, the controller might use organizational measures like a policy “you're not allowed to do that.” Many companies allow employees to use their personal devices for work purposes (BYOD). When the data controller allows this and takes appropriate safety measures, everything is perfectly fine. The company still has to make sure that the data is only processed for legal purses and deleted afterwards. Implementing a BYOD policy in a GDPR compliant manner is difficult but not impossible. A data breach has occurred when the security measures were insufficient and your data was deleted or disclosed without authorization. Your scenario would only be a breach if the company did not have a BYOD policy and the salesman used their personal phone, and arguably then only if that device is also breached. However, do not discount the alternatives: they do have a BYOD policy and the salesman is acting within their instructions the salesman was using a company-controlled device, not their personal phone If you have good reason to believe that your data was mishandled (and these alternatives do not apply), then the GDPR offers you the following remedies: You can of course complain to the data controller, especially if they have a dedicated data protection officer. You can lodge a complaint with a supervision authority, which is the ICO in the UK. They expect you to attempt to resolve your issue with the controller first. The ICO can then decide if they want to investigate the issue. You can sue them for compliance and for actual damages suffered (you have none, though). Note that all of these alternatives are more effort than they are likely worth. In particular, the garage can always correct the problem, e.g. by getting your contact info deleted from the personal device or by creating a retroactive BYOD policy. | You might take a look at this summary. You have an offer, consideration (a promise of something valuable), acceptance, and "mutuality" i.e. there was no confusion over what you are talking about. Email is a form of writing, and written contracts are the strongest that there are. In this case, the offeree relied on the contract in buying materials and who knows what else. If there's nothing surprising that you're not mentioning, a court would then obliged you to make him whole. That could be in the form of compensating him for his losses, or else ordering specific performance (i.e. making you sell the car). Specific performance is most likely with real estate deals where the seller reneges, but maybe not in this case, and maybe especially not in Wisconsin. It is likely that you could keep the car for a price, but you'd really need an attorney to advise you on that. | Maybe You linked to the publication of a patent application, not to a patent. Based solely on looking at the format of the number the answer would be, Yes, unless it eventually became an issued patent. As it happens, it did become issued patent US9066511B2. That would make the answer no. Since the application was filed before you started selling them, the fact that you were selling them in 2017 could not be used to challenge the patent. I say the answer is maybe because the patent has been disputed in court and I do not know if the outcome has left the patent valid. You can look this up at the USPTO Public PAIR. Then you need to search with either the patent number or the publication number. When you get to the record of the history of that application look at the Image File Wrapper tab. | 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. | You can read about (federal) damages from the Surface Transportation, but they are at least liable for 60 cent per lb. for damages. The company has to inform you that you have the option for full-value, which you can waive. In addition, they are allowed to limit their liability for damages for items of high value such as furs and jewelry, things worth more that $100/lb (sounds like the coffee table might be such a thing). You are also required to give notice of high-value items. If you waived full coverage in exchange for a lower rate, then it would be non-productive to take them to small claims court. Also, under state law, there may be an arbitration clause which would prevent you from suing them (so, check the contract). | Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough). |
Can I sue for false promise During the covid pandemic, I requested to work from home due to my kids being out of school. I was told that I would need a laptop In able to work from home. My manager told me that when I got the laptop I would be able to be set up to work from home. About a week later after going from store to store searching for a laptop.which were sold Out due to more people Working from home I finally found one and purchased it. After I informed my manager that I now have a laptop she told me to get set up with IS and the front desk lead to work from home. I proceeded to do both which I took the rest of the day doing some training with a front desk person.when getting set up with is took about two weeks and I still was not successful due to underlying requirements that I was not aware of. I constantly had to put ticket after ticket request in in order to even download the app to my computer. The last call I made to IS they finally told me what the problem was and he informed me that I was to hav training through learning links in able to have access, he informed me that he would still put in a token requested but my manager would have to approve it. I went to inform my manager of this and she told me just to report to work the next day but I was already taken off the schedule to work from home. My only baby sitter is now returning back to work due to the fact that I was approved to Work from home and after months of me battling, trying to manage with not leaving my job is to find a sitter which my luck is now running out. I explained everything of this with childcare to my manager and she agreed to let me work from home. She even took my off the schedule which I Have proof of also messages and emails getting me set up to work from home. So yesterday morning I looked at my email to see if it was approved, the request said rejected. I then saw my manager and she said that she had to speak with me, once we spoke she didn’t even mention the fact that I was not approved and I have to report to work the next day. I had to mention it to her, what she said she had to speak with me about was totally different from the fact that she denied me to work from home. Her reason was because I had to do 4 days of training and she couldn’t afford for me to be out of work for four days .... but she already took me off Te schedule and it’s been two days now and people are covering me the days I was suppose to be off..... so how does she not have coverage if everyday I come in and see that an extra staff is here to cover me .....after me purchasing a laptop and going through everything I had to Go through just to be turned down even after being taken off the schedule. I’m pregnant and I’ve been crying every since because it’s depressing to me that I now have to possibly quit my job because I can’t battle with having a sitter anymore. Do I have a right to sue them for renege/false promises? | You can't sue for false promise per se, but it might enter into a suit for something else. It sounds like your employer offered you a choice between coming in to work (extremely difficult), termination or furlough (extremely undesirable), versus working at home (the preferable option), and the latter was contingent on you doing things that relate to being able to work at home (get a computer and so on). Relying on that promise, you purchased a computer: but then they decided that you had to come in to work. Based just on that, you could sue them for damages (maybe the computer, maybe the added cost of finding a new babysitter, possibly loss of wages). They might want to argue that they don't owe you anything, but your lawyer would (legally) prevent them from making that argument, using what is known as promissory estoppel. You took certain actions based on their promise, so you are entitled to rely on that promise. Their counter-argument would probably be that you didn't do what you were supposed to do, and your attorney would respond that the company obstructed you from doing what had to be done, or had not taken reasonable steps to say in advance what was required of you. | An essential component of your contract with them is that they will provide you with food free of animal stuff (the exact nature of "vegan approved" may be up for debate, but actual meat should not be included). So they breached their contract with you, and you might sue them for breach of contract. The case of Gupta v. Asha (orders were mixed up) could be useful in this matter. In this case, Hindus were served samosas containing beef, despite repeated assertions that they were vegetarian. Plaintiffs sued, the case was dismissed, and the appeals court deemed that the lower court was part right and part wrong. The important thing to understand is that you have to claim a specific legal wrong (and your attorney would advise you about that). Those plaintiffs made a claim under NJ product liability law, and that was dismissed because the product wasn't defective, it was simply the wrong product. They also made a claim regarding fraud, and there was at least a legal question behind that claim, but because there was no ascertainable loss (e.g. the plaintiffs were not hospitalized because of the omission), so that claim too was dismissed. Likewise a negligence claim was dismissed. Plaintiffs did get to first base w.r.t. the claim of emotional distress arising from breach of contract. I have no evidence regarding the final disposition of the case: the point is that there might be a legal basis for a lawsuit in your state, but you would need to secure the paid assistance of an attorney. | You have several issues. Breach of Contract When you sign up with each of those services you are entering a legally binding contract and must comply with the terms of that contract. For example, this is taken from Facebook's terms: Here are some commitments you make to us relating to registering and maintaining the security of your account: You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission. You will not create more than one personal account. I haven't checked but its a fair bet that the other services have similar terms. Unless you have permission, what you are doing breaches these terms of service. If what you do causes damage to Facebook et al then they can sue you and your employer for damages. Even if it doesn't they can probably bar you from having an account for as long as they like. Improper use of images This is jurisdictional but it is generally required to have the permission of the subject of a photograph where that photograph is used for commercial gain. There are exceptions where the person is not the primary subject (e.g. crowd shots, or images primarily of something else where the person happens to be in the shot) but the type of photos you would use for these services are not going to be exempt. The sanctions for breaching this will be dependent on jurisdiction. Breach of Copyright Somebody owns the copyright in those photographs. If you do not have a licence to use them in the way you propose then you are breaching their copyright. The copyright holder can sue for damages (if any) and any profits you make. Vicarious Liability An employer is strictly liable for the actions of their employees, jointly and severally with the employee. That means a plaintiff can go after either the employer, the employee or both. An employee may have some statutory or contractual indemnity but this is by no means common. | 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. | The question is a bit sparse on relevant details, but yes, a EULA is binding, even when you agree in the course of employment. It may not be you who is bound, though. In case 1, you install a program at word to do something, the EULA says "don't copy any of these files", you see a cool file and decide "Neat, I'm taking a copy home. I can do this because I installed the program at work and am not bound by the EULA". Wrong. Case 2: you are installing software on behalf of a customer. It's not you that is bound by the EULA, it's the customer. Case 3: you work for the company that develops the software and holds the copyright, either fixing bugs or testing the security of the system by trying to crack it. In that case, you have special permission from the copyright holder that overrides whatever restrictions would normally from from the EULA. I don't know if that covers the kind of case you are concerned with. To reduce the matter to a simple sentence, just because you agree to something in the course of a job does not mean that the agreement is invalid. | Do you have a contract? It depends on the website’s terms but almost certainly not. It is standard practice in e-commerce terms and conditions that your selecting “buy” and giving the vendor money does not create a contract; you are merely making an offer that the vendor can accept or reject. For example, Amazon’s terms are clear that the contract only comes into existence when they dispatch the goods, until then they are free to cancel your order and return your money. Here the vendor rejected the offer. Is this false advertising? Maybe. It would depend on the specifics of the ad and whether, overall, a reasonable person would be mislead or deceived. It’s possible you misunderstood but that doesn’t necessarily make it misleading or deceptive. I misunderstand a lot of things; that doesn’t mean they were objectively misleading or deceptive. Notwithstanding, a business does not have to make good on false advertising. An incorrect advertised price does not force the business to anccept offers of that price. It may force a correction and may require the item to not be sold until the price is corrected and it may expose the business to fines, but it does not give anyone the right to buy at that price. | Yes, they can ask Provided you attendance is voluntary and there are no negative repercussions (other than missing the learning opportunity) for not attending. If you have to go, they have to pay you. | What legal options do I have here? It depends on how much you are owed. If it is less than $5000 (in a city court) you can sue them in small claims. If it is more than that, you'll have to sue them in a different court. Do I have a claim to salary if I quit? Yes, absolutely. You quitting does not relieve the business of its obligation to pay you for work you have already performed. In some states, they may also be required to pay you for accrued leave (sick/vacation time). You should not have to work for a company that does not pay you, we got rid of slavery a long time ago. I'm nearly positive I would not have a claim to the 100% discretionary bonus. Maybe, maybe not. This depends on your contract and what you've been told. If you were told (in writing) that you would be given $X amount for a bonus for work performed in 2018, the bonus may no longer be discretionary because the company obligated themselves to pay it via a promise. Bonuses may be harder to argue in court, but if you have sufficient documentation that you were promised this bonus then you may have a claim to it. If you do decide to go to court with this, gather up as much documentation as you can before quitting, print it out and save it to bring to court or to your lawyer. Make sure to get as much as possible, for example if it is an email, get the whole chain, as much of the headers as possible, etc. If you have voicemails, see if you can save them or record them for later. Do not wait too long, have a lawyer draft up a demand letter the moment you quit outlining exactly everything you are owed, including the bonus, vacation, sick days, etc. Deliver this via certified mail. Don't let them say "well we'll get you taken care of next week/month/pay day". There are statutes of limitations (I don't know what they are for NYC) but you should be making an effort to collect, not waiting on them. After you quit, they don't have an incentive to pay you anymore (even though they are legally obligated to). |
Where is Arizona's [and other states] timezone defined? Where is the timezone defined for Arizona? Is it in the Arizona constitution? Is it in Arizona Revised Statutes? Is it in the United States constitution? Is it in the United States Code? Where is Arizona's timezones legally defined? What about other states? What about other non-states, like Washington D.C., and reservations? Are there any laws governing timezones federally? Is every state legally required to establish a timezone? It the timezone based on UTC, GMT, or any other time standard? What is the history of legal timezone definitions? Do Indian reservations have to define a timezone? EDIT: If federal law governs timezones, is it within their constitutional powers to do so, or could libertarians (or other party) argue otherwise? Could a state use their 10th ammendment rights (along with any other state rights) to override any federal law or standard? | The basis for timezones within the US is part of the 15 U.S. Code SUBCHAPTER IX— STANDARD TIME, which defines the offset from UTC, names and special cases. The actual specific boundaries are formed by the basis of an order from the Transportation Secretary. | I have the same line in a contract that was just sent to me. So I did some quick research into this. However, I AM NEW TO THE SYSTEM AND DO NOT KNOW IT WELL!!, so please do not act on this information without seeking further advice from the relevant professionals. From what I can gather, the "Arbeitszeitgesetz (ArbZG)" is the law that governs working hours in Germany. Here is a link: http://www.gesetze-im-internet.de/bundesrecht/arbzg/gesamt.pdf I used Google Translate to translate this information and found that in §3 it states that "The default daily working time must not exceed eight hours. It can only be extended up to ten hours if within six calendar months or 24 weeks an average of eight hours working day is not exceeded." This would lead me to believe that even if overtime is not paid as extra on top of your salary, they must give you the time off at another time to keep the average working day to 8 hours. **However, as the working week is Monday - Sat, the average working hours per week may be calculated as 48 hours per week, and not 40! Once again, I am not fully sure of my information, so use at your own risk!! | The U.S. Constitution - Article 1, Section 10 is titled "Powers Prohibited of States," and it reads: No state shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. The title of the section, Powers Prohibited of States, tells us that this clause is directed to the states and prevents the states from enacting any state laws that retroactively impair obligations and rights between two contracting parties. In New Orleans Water Works Co. v. Louisiana Sugar Refining Co, the court held that a law passed by the state legislature must be the cause of a contract's obligations to have been impaired in order for relief to be sought under this clause. The Heritage Guide to The Constitution has a good article explaining the history of this clause. A central provision of the Northwest Ordinance, which established the Northwest Territory, stated: In the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed. While operating under the Articles of Confederation between 1777 and 1789 when the U.S. Constitution was adopted, some state legislatures were passing laws relieving well-connected people from debts for which they had contracted. As the Heritage Guide explains, the obligation of contracts section was added to the clause of the Constitution which prevented states from printing money and making treaties. Initially, the clause was meant to prevent state legislation that retroactively changed the terms of private contracts. But as cases worked their way through the courts, the Supreme Court eventually set that standard that the obligation of contracts clause also prevented states from undoing contracts to which the state was a party where the obligation of the contract had been completed. (As opposed to breach of contract claims for uncompleted contracts.) Ogden v Saunders, in 1827, held that the obligation of contracts clause doesn't apply to contracts that did not exist at the time a statute was passed. Those states with their own Obligation of Contracts Clause may have had them before the U.S. Constitution was written (Virginia's original constitution was enacted in 1776) or may have added them as an amplification of the prohibition found in the U.S. Constitution. | Texas and California are actually what are called Presumed Speeding states, unlike most others which are Absolute Speeding states. (There is a little known third category called Basic, but this is uncommon). In a presumed speeding state, a speed-limit violation offers someone in your shoes far more flexibility in building your defense than the more common absolute state. In states that use this presumed system, such as California and Texas, it is not illegal to drive over the posted limit as long as you are driving safely and this can be established. For example, if you are driving 50 mph in a 40-mph zone, you are "presumed" to be speeding, yes. However, despite this prima facie evidence (meaning "on its face") of speed in excess of the posted limit, if you can show you were driving safely you may be able to mount a pretty decent defense. Just because you got a ticket is not prima facie evidence beyond a reasonable doubt that you were speeding. You are presumed innocent. If they prove you were speeding this is all they need to make their case, unless you rebut it. But there is a lot of room to rebut this presumption – and that is if they prove it. They must (as with all criminal cases) prove you did what you are accused of beyond a reasonable doubt – the highest standard of proof in the U.S. So, if everyone was going 80 MPH in a 70MPH zone, you would argue that the road was (I'm assuming) dry, unmarred, you were traveling in heavy enough traffic that to slow your speed to the posted limit would actually be less safe than traveling with the flow of traffic. You can talk about the state of your vehicle (repair, handling, etc.), how you stayed in one lane, and you can describe your skill at driving – especially if you have no other tickets and you have been driving for a long time. If you were weaving in and out of traffic, riding someone's bumper, if it was pouring rain, the road was bumpy or under construction, or if you admitted speeding (if you did this you can still rebut with a showing of safe driving, but ignore all info regarding challenging radar or other means of determining speed), or if any other evidence exists that the officer would testify to that shows you were not driving safely, this will not be successful. A successful example of a speeding defense in Texas: on a clear, dry morning with no other cars on a wide, straight road, a man is pulled over for being clocked going 50 mph in a 40 MPH zone. He had a perfect record and had been driving 22 years. He was driving a 2-year-old car. He convinced a judge that this was driving safely given those conditions and was acquitted. That's because facts presented were sufficient to "rebut the presumption" that by going over the posted limit he was driving at an unsafe speed. NOTE: Never bring up your driving record unless it is spotless. Unless you are a habitual offender it cannot be used against you or be brought into evidence at all, unless you open the door. You can also mount a defense based on the radar detection device, if one was used. You can seek records as to when the calibration fork was last checked, when the last time it was professionally calibrated (rather than self calibrated). You can ask, in a leading way (only if you know) how close the car behind and in front of you were (you don't want to be too close to the car in front of you, however if the cars were tightly grouped it is more likely the radar detector could have read another vehicle): e.g., "Isn't it true that the car behind me was only 1.5 car lengths behind me?" Only do this if you know, but if you can get the officer to admit that the car behind you was close, that can be used to rebut the radar detection and goes to the argument that driving slower would have been dangerous and you were driving safely with the flow of traffic. You should be prepared to put on an entire trial if you fight the ticket. In Texas, I believe speeding is considered a Class C criminal offense (rather than a civil offense as in most absolute states); hence, they have to build the prima facie case against you and prove it beyond reasonable doubt. If you can afford one, get a good traffic violation attorney. Always choose a jury in this type of case. Everyone speeds a little and you are far more likely to be acquitted by a jury than a judge. You should also ask to have the case assigned to the county seat; request this in writing ASAP. If you are trying the case, be prepared to go after the officer. Note any distinguishing marks on your car (if any), recall what you wore, what time of day, the lighting, all that. Even go back to the scene at the same day and time and take video showing the flow of traffic, (hopefully) the straightness of the road, etc. Cross-examine him on all facts with confidence and in a leading manner. Always ask for the calibration reports and you will get all evidence against you in discovery. This thing about 10mph being the minimum they can give a ticket for: ignore that, it's rubbish! It's meant to get you to admit to him that "you were only going 8 or 9 over." Also, that whole percentile argument is not relevant and will not work at all. You must show that you were driving safely given all the facts and circumstances to rebut the presumption that you were driving unsafely by speeding. It is worth fighting as you will also incur surcharges, increased insurance rates, and points on your license that are cumulative and stay for 3 years – a certain amount of which gets you suspended if you get (or have) more violations. | There is no absolute rule in such cases. It is often a matter of negotiation between the state and federal authorities, and failing agreement, a matter of which authority has the prisoner in custody. Often the question of which crime is more serious or carries a longer sentence is an issue in such negotiations. | Courts, particularly traffic courts, tend to take a police officer's word over that of an accused person. While legally the limit is 70, the driver has very little recourse if the officer claims falsely that the actual speed was over 70. But the deterant effect of a posted limit is lost, since drivers in general have no way to know that Officer O will ticket anyone going over 60. I suppose that driver D, or D's lawyer, could subpoena calibration records of any radar gun or other measuring devise used, and could insist on its being tested. However, unless they had reason to think there was an issue, I wonder if D and D's lawyer would go through that process. Some speed measuring devices print a paper slip showing the date and time along with the reading. If such a device was used that record would be harder to alter. Some cars are now equipped with devices provided by insurance companies that record speeds and other driving info in a secure way to help judge a driver's safety and allow individual rate setting. It might be that the record from such a device would be admissible to show the speed was under the posted limit. But there is a sense in which the law is what the police and the courts enforce. If anyone who drives the road over 60 is cited and must pay, one could say the effective limit there is 60. | Time immemorial is 1189 CE Do you know how many documents survive from 1189 CE? F#*k all, that’s how many. We don’t have the original case law because, quite simply, we don’t have the original case law. In any event, “time immemorial” is simply a legal fiction stating the date to which you had to be able to trace land ownership before you had indefeasibility of title. Common law goes back way beyond that and even way beyond the Norman conquest in 1066. At a certain point, it doesn’t matter. Things are done that way because things are done that way. For example, Pythagoras’ Rule (the square of the hypotenuse of a right triangle is equal to the sum of the squares of the other two sides) was not discovered by Pythagoras. It was known to both the Babylonians and Egyptians 1,000 years before Pythagoras was born yet it will likely be Pythagoras’ Rule for as long as the human race endures. | Down - to the centre of the Earth. In a practical sense, 10km or so. Up - to the edge of space. Assuming she is not a US citizen, LPR or visa holder, has she illegally entered the country? Has she entered the country? Yes. Is this illegal? Well, presuming it is not a place "designated by immigration officers" for entry? Yes, irrespective of any residency or visas she holds. Only US citizens may enter at other than designated crossing places. If she commits a crime while in that area, would a court in Arizona have jurisdiction to try her for it? Yes. What about a court in Sonora? Maybe. It depends on if the crime triggers some form of extraterritorial Mexican jurisdiction. If she gives birth to a child while in that area, would the child be a US citizen by jus soli ? Yes. Would it be a Mexican citizen? If the mother or father is a Mexican, yes. Also, if the person is born on a Mexican-registered vessel or aircraft which seems unlikely in the circumstances. She has jumped across the border line, but has not yet landed (okay, hard to imagine a child being born in this short of a time, but surely a crime could be committed while in the air) Same answers apply. She is in an airplane crossing the airspace over Arizona What is the nationality of the airplane? Is this a commercial or private flight? Is its source or destination in the US, Mexico, both or neither? Has she passed through any nation's immigration? She is an astronaut on the International Space Station, which happens to pass over Arizona in its orbit. The ISS is subject to it's own treaties - it depends on her nationality and what part of the ISS she is in at the time. |
Corpus Juris Secundum request This is an unorthodox request for this medium, and may not even fit the kinds of questions allowed here, but... if anyone has access to Volume 50 of the Corpus Juris Secundum, I need the full text for § 275. It's in regards to some research I'm doing on voir dire, and I keep seeing this mentioned, and although CJS is available on Westlaw, it's not divided into volumes--apples and oranges. Or, if someone can tell me how to translate 50 C.J.S. Juries § 275 into the CJS that's available on Westlaw, that would be great also. I've done a search on Westlaw in their version of the CJS for "voir dire" and found a number of sections that may equate to volume 50 § 275, but I need a bullseye. If anyone can help, great! If not, I'll keep searching. Thanks! | Once you're in CJS, scroll down to "Juries." From there, it's just a matter of expanding the subgroups to see what sections they include. In your case, its: Corpus Juris Secundum Juries IX. Constitution and Selection of Jury in General B. Cognizable Groups § 275. Age as cognizable group for fair cross-section Cognizable groups for jury selection purposes generally do not include age groups, such as young adults. Cognizable groups for jury selection purposes generally do not include age groups, such as young adults, young people, or the young, or the elderly. It has also been held that young persons can constitute a cognizable group, but that their claimed underrepresentation does not invoke a high standard of judicial review. Moreover, there is authority that whether an age group is a cognizable group, for purposes of a challenge to the array of grand and traverse juries, depends on the time and location of the trial. | Probably.* Congress has wide latitude to dictate the procedures of "inferior courts" -- the district courts and circuit courts of appeal. Those courts only exist because Congress created them, so Congress can generally set the terms on which they continue to exist. That power is limited in several important ways by the Constitution, including the terms and compensation of the judges, and standing to address cases, and then further limited by separation-of-powers principles. But the Rules of Civil Procedure and the Rules of Criminal Procedure are a good example of how Congress has already -- and largely unobjectionably -- imposed these types of demands on the judiciary. The rules are generally drafted by the judicial branch, but Congress approves them and gives them the force of law. In both sets of rules, you can already see some requirements on how decisions are worded: Criminal Rule 23 requires the court to "state its specific findings of fact" after a bench trial; Criminal Rule 32 requires the court to "set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence" in judgments of conviction; Civil Rule 52 requires the court to "find the facts specially and state its conclusions of law separately"; Civil Rule 58 requires that "every judgment and amended judgment ... be set out in a separate document"; Civil Rule 59 requires the court to "specify the reasons [for granting or denying a motion for a new trial] in its order"; and Civil Rule 72 requires magistrates to enter "a recommended disposition, including, if appropriate, proposed findings of fact." The rule you're proposing seems to go well beyond these requirements, but I don't see how it would run afoul of constitutional constraints. I could imagine an argument that this somehow encroaches on the courts' inherent authority, but I'm not really convinced that that authority protects against this. For more information, you can read the Congressional Research Service report on "Congressional Authority Over the Federal Courts." *This answer only applies to Article III courts, but even then does not apply to the Supreme Court, which is co-equal and generally has the authority to set its own rules. When it comes to Article I courts, though, Congress would probably have virtually unlimited discretion to impose the kinds of requirements that you're talking about, and even to say that the court has no jurisdiction to consider constitutionality at all. Congress might even get away with imposing these kinds of requirements on state courts through the Spending Clause | 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. | 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. | I'd imagine that testimony from the defendant is rare enough that in the majority of cases, prosecutors do not meaningfully prepare for a cross examination. To the extent they do, I'd expect the preparation is similar to that for basically any other witness. So I wouldn't expect complicated flowcharts, because the general rule at trial is that you only ask questions whose answers are both known and helpful. So if I need to place the defendant at the OK Corral at 3 p.m., I'm only going to ask him where he was at 3 p.m. if I have evidence showing that fact is true -- maybe he gave a written statement to the sheriff, maybe he posed for a daguerrotype, whatever. I expect him to deny it, so I don't ask the question unless I have evidence more convincing than his denial. In this way, a defendant -- like any hostile witness -- is used less to provide any facts of their own, but rather as an involuntary narrator of my own story, authenticating evidence and validating the facts consistent with my theory of the case. | 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 distinction being made here is far more subtle than it is made out to be in the article. There is a whole cottage industry of case law in almost every state (and under federal law) to determine which deadlines are jurisdictional and which are not. The case law is not uniform nationwide, and often, it isn't even consistent in seemingly analogous circumstances in a single state. The analysis is also more results driven than it is logical. And, it isn't unheard of for a state supreme court to decide that a deadline that lower courts have called jurisdictional for decades, but that the state supreme court has never had an occasion to consider, isn't jurisdictional after all and can be tolled. I've seen it happen more than once (although I don't have citations to those cases easily at hand). There may be practical importance to a parole officer deciding that the deadline has run. This might prevent the issue from ever being litigated. But, the person quoted in the article on that point is a non-lawyer government civil servant who isn't the person who will make the final call if the issue were ever litigated, something that would instead be handled by a senior lawyer in the California Attorney General's office. The author, like a lot of IT professionals and engineers, expects the law to be more consistent, logical, and predictable than it really is, and it so happens that this time he got lucky in his own case, so he thinks he's an expert. | 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. |
Is it illegal to reverse engineer a software if the EULA prohibits it for all purposes? I have installed an Android app that lets me play with networking and HTTP headers. One of the perks of the app is to be able to export a configuration file so other users that also have the app can import it and use your server (the purpose of the app is to make an SSH tunnel so the config files have SSH server address and credentials, among other things) The thing is, you can choose to "lock" the configuration files so the people you share them with can import them and connect to your server, but can't actually see the server address or credentials. I assume the files are encrypted with AES and the key is static, but I'm getting off-topic now. One of the clauses in the EULA clearly states: "You may not decompile or reverse engineer the software, for any purpose or under any circumstance." The reason I want to reverse engineer it is to decode the configuration files, so the people who want to can use the data in other apps such as OpenVPN. The U.S law for reverse engineering is pretty clear in this regard: (f)Reverse Engineering.— (1)Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title. So, in this case, since my objective is to achieve interoperability (so users can use the data from the config files in other apps) wouldn't this count as an unlawful clause in the license agreement, therefore, invalidating the entire contract? | wouldn't this count as an unlawful clause in the license agreement, therefore, invalidating the entire contract? No. The excerpt of legislation you posted implies that the clause in the EULA is null and void --rather than illegal-- if your reason for reverse engineering meets the legislative criteria. For the clause to be illegal, the statute would have to outlaw clauses which prohibit the reverse engineering intended for achieving interoperability. The statute does not prohibit those clauses. Instead, it only authorizes you to ignore that clause, provided that your reason for doing so is to achieve interoperability. Lastly, an invalid clause does not invalidate the entire contract. Any portions of the contract which do not depend on the invalid clause retain their status of [being] binding and enforceable. | Using it without permission is copyright infringement and illegal. Legally, you can try offering money to the company for the copyright or for a suitable license. For example offer them $1000 for a copy of the code licensed under the GPL license. If they accept, you are fine. | User manuals are indeed copyrighted. On the other hand, since the people building the cranes are most likely interested in people reading these manuals, there is a good chance that you would get permission to copy them, for example as part of a mobile app, if you ask the manufacturer. On the other hand, it is possible that the manual was written by a third party, who receives some fixed amount of money for every manual that the manufacturer gives away to customers for free. In that case, copying would destroy that persons earnings, so permission would be unlikely. You definitely need to ask for permission and can't go forward without permission. It would also be possible that the crane manufacturer will want to check out your app to make sure that everything is correct - if someone damages a crane because of some omissions in your app, that would be very bad for them. | That “shall be used for Good, not Evil” clause is a moral category, not a legal category. From a legal perspective, it is likely meaningless and/or unenforceable. Neither Debian nor users of that software should expect any legal risk for using or distributing the software. However, software under that license will never make it into Debian because it violates the Debian Free Software Guidelines. The DFSG is not a contract in the legal sense, but it forms part of the Debian social contract with its users. It is not in the interest of the Debian project to include software unless the software is free to use for any purpose. While the JSON license's usage restriction is likely meaningless in practice, it clearly tries do do exactly what the DFSG wants to prevent. In the Open Source community, there is a broad consensus against the JSON license. The DFSG, slightly edited, was adopted as the Open Source Definition. Consequently, the JSON license also fails to be an Open Source license. The Free Software Foundation also looked at the license, and concluded: “This is a restriction on usage and thus conflicts with freedom 0. The restriction might be unenforcible, but we cannot presume that. Thus, the license is nonfree.” | Yes, you can fork it - but you can’t use it GitHub explain what’s a public deposit with no licence means here. If you find software that doesn’t have a license, that generally means you have no permission from the creators of the software to use, modify, or share the software. Although a code host such as GitHub may allow you to view and fork the code, this does not imply that you are permitted to use, modify, or share the software for any purpose. Your options: Ask the maintainers nicely to add a license. Unless the software includes strong indications to the contrary, lack of a license is probably an oversight. If the software is hosted on a site like GitHub, open an issue requesting a license and include a link to this site. If you’re bold and it’s fairly obvious what license is most appropriate, open a pull request to add a license – see “suggest this license” in the sidebar of the page for each license on this site (e.g., MIT). Don’t use the software. Find or create an alternative that is under an open source license. Negotiate a private license. Bring your lawyer. | Yes, their waiver has no legal basis and is invalid under the GDPR. They should have hired a better lawyer. GDPR rights cannot be waived (mrllp.com). The last bit should have been: Therefore, in consideration of my participation in any project, I understand that retaining my name and email address, as described above, does not require my consent and that the right of erasure, as spelled out in the GDRP Article 17 (1) b does not apply. The legal basis for our lawful processing of this personal data is Article 6 (1) f ("processing is necessary for the purposes of the legitimate interests pursued by the controller"). I.e. there is nothing in the GDPR that compels GitLab to erase this information, but their waiver is bogus. Keeping track of individual contributions in a software projects is necessary for a number of reasons, including security (if somebody contributes code that jeopardizes security, you want to audit everything that person has contributed). | First off: Legally, everything is copyrighted anyway. Licensing is not at all necessary. Hence, even if a court would disagree with # SPDX-License-Identifier: Apache-2.0, that would just make it closed source. Having said that, the law generally doesn't bother with trivialities such as "file headers". Any commonly accepted way to state the copyright and license terms is OK. Your LICENSE is such a common convention. If you want to avoid all doubt what is covered under that license, put a reference to that LICENSE in each header. If you have just five files in one directory that are all licensed the same, I wouldn't even bother with that. Again, the default position is that everything is closed source. | It is likely that the law applying will be both that of the USA and your country. If you went to court this would be one of the things you argued over. For example, Australian Consumer Law applies to any goods or services sold to a customer in Australia irrespective of where the vendor is located. Your jurisdiction may have similar laws. At first blush you must comply with the term of the contract preventing reverse engineering. They would be within their rights to terminate the licence if you don't. However, they probably have an obligation under your equivalent to the ACL to supply a product that: is merchantable is fit for purpose does what it says it will do If it doesn't then you have a right to terminate and get your money back, sue for damages and your country's government may prosecute. |
Is it legal to short a company's stock and then blog about why you did it? In America, is it legal to short a company with which I never had any affiliation and then write a negative blog post about it affecting the company's stock price? More specifically, suppose everything in this blog post is accurate, but kind of difficult to prove. Experts are needed to determine the truth, and the experts are, say, 9:1 in favor vs against it being true. Can this company drag me through the courts for libel? Is there any kind of SEC violation possible here (stock manipulation, or something)? | As long as what you are posting is factual, public knowledge then you shouldn't be in violation of any SEC rules. Short-selling in-and-of itself is perfectly legal, so is exercising your right to free speech, in so far as the things you say are true and known. Now if you made up some story about Musk and it caused the stock to fall where you gain, this could be a violation. Likewise if you have come to be in possession of private knowledge and blog about that, you could be in violation of SEC rules. | If your statement is true, it is not libel. But if it is false, it is libel. It does not matter if you directly name him, what matters is if he can be specifically identified by others. Not all others, but at least some others. | This doesn't sound like fraud (against you, at least), but it does sound like an unfair or deceptive trade practice, which is outlawed by Section 5 of the Federal Trade Commission Act and perhaps the Pennsylvania Unfair Trade Practices and Consumer Protection Law, both of which prohibit unfair and deceptive trade practices. I don't know about Pennsylvania, but the FTC has on many occasions taken action against companies for engaging in just this kind of behavior. To find out whether you would be able to take action against the other company, you'd want to find a good competition lawyer in Pennsylvania. For some more basic background on the FTC's rules, check out this primer. | Does criticizing public figures constitute libel especially in a private group? It depends on the specifics, but a priori your description suggests that the defense of honest opinion would be applicable. This is regardless of whether the subject is a public figure and regardless of whether the statements were in private --albeit non-privileged-- communications. Case law surely provides guidelines or precedents on how the details and circumstances of the events would fare on the parties' legal position, but I am not knowledgeable of UK/English law. Does X have a counterclaim for illegally accessing the data? The matter seemingly depends on how the religious leader had or gained access to the data. Even if he gained access by stealing or hacking a device or account, X would not have standing to [counter-]sue unless the device or account belongs to X. Be mindful of the possibility that third party might have made the disclosure to the religious leader. In that case, actionability (if any) of the disclosure only encompasses the third party, not the religious leader. X's intent that his statements stay only among the participants does not necessarily imply that participants' disclosure elsewhere is unlawful. | If I understand your question, you're asking the difference between something like this: "You shouldn't do business with Bob; he's a child molester. Raped a whole bunch of kids. Everyone knows about it." and this: "You're thinking of doing business with Bob? Huh. That's your call, of course. I won't say anything against Bob. But Bill is in the same business, and I happen to know that Bill has never molested any kids." or this: "There are three people you could do business with. There's me. I've never molested any kids. There's Bill; he's a little expensive, but he's never molested any kids either. Then there's Bob. I don't have anything to say about Bob." I don't know the answer under German law, but under U.S. law, it's surprisingly complicated, and varies by jurisdiction. Here is a thorough but somewhat dated article on the subject. New York has recently established an explicit test for defamation by implication: To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. Stepanov v Dow Jones & Co., 2014 NY Slip Op 03940 (App. Div. May 29, 2014). That opinion also discusses the other approaches used in other U.S. states. Under that standard, it seems clear that my example statements would be defamatory; any juror would immediately understand both the factual implication and that it was 100% intentional. In practical terms, I doubt any court in the United States would not consider them defamatory. In general, defamation is harder to prove in the United States than in other jurisdictions, because of the strong protections afforded to speech under the First Amendment--but I don't know enough about German law to speak to that issue. | They aren’t The journalist is attributing a payment by the company as a cost to the shareholders. In accounting terms, that’s a fair equivalency - the shareholder’s equity will fall by the amount of the liability. In legal terms, it isn’t - the company is a seperate legal entity from the shareholders and a payment by one is not a payment by the other, even though for each shareholder, the value of their shares will change. However, markets being what they are, the change in value is unlikely to be exactly the same as the amount the company pays, the value may even rise if the market expected the costs to be bigger than they are. They may rise even if the actual costs are bigger than the expectation - markets prefer certainty over uncertainty even in bad news. Of course, the bulk of the actual cost is likely to be borne by PG&E’s insurers. | A SAFE is basically what used to be called a "subscription agreement", i.e. an agreement to invest money in the future that will ultimately give rise to an equity investment if made. From a practical perspective, while the contract is legally enforceable, pursuing a lawsuit to enforce it is almost always a death knell level bad move. Firms who sue investors early in the game don't get future investors. The amount of time it takes to enforce such an agreement in a lawsuit is also too long (perhaps a year or two before you have money in hand if it runs its course and still many months if it settles), and the cost of doing so is too great (probably more than $40,000 that you won't get back to bring in $400,000), for it to make sense to do so at the delicate early stage of a start up. Instead, what you need to do is get on the phone with the investor, or quite possibly meet in person, at their offices or in a more casual deal making environment over drinks, for example, to figure out what is troubling them or slowing things up and how to make them happy. This is more of a function of continuing to sell the fact that you are good investment and an opportunity that they are missing out on, than it is about telling them about your legal rights. If this fails, it is probably wiser to seek financing from someone else than to force them to perform. | Whether this is considered a trade secret (at least in the US) depends partly on whether you've taken reasonable action to keep it secret. If an employee thought it was OK to publish the algorithm, that's evidence that you didn't try very hard to keep it from getting out. Even if nobody's noticed it yet, getting the blog post taken down in't going to get it off the internet. You may as well try to do it anyway. If nobody has noticed the algorithm by now, you want to make it harder for them to find. You need an IP lawyer pronto. Depending on where you are, you might be able to get a patent on the algorithm still, but patents are hard to enforce, and it appears to be getting harder in the US to patent algorithms. (There's a Stack Exchange site so people can look at patent applications and see if they can invalidate the application with prior art.) You can't license out the algorithm without having some legal way of stopping other places from just using it. If you have more proprietary algorithms or things that aren't generally known that give you a competitive advantage, it would be a good idea to inform employees that they aren't supposed to reveal them. Check with your IP lawyer to see what you should do. |
What is the "penalty" for placing fake orders of Treasury bonds? I did ask this question to TreasuryDirect, but received no answer. Most weeks the U.S. Government issues Treasury bond products, for terms as short as four weeks. You receive the face value but pay less than the face value. The price is determined though auctions. You can bid competitively (I will lend you $998 if you pay me $1000 in a month) or non-competitively (I want $1000 in a month and I will pay you whatever the prevailing rate is, which will always be lower than the face value). The auction happens several days before the bonds are actually issued. The Treasury has confirmed to me that if one doesn't have the money in the account linked to the website, one simply does not receive the bonds. The bids, however, have already affected the prevailing price. What happens when some patriot, wanting to improve the terms on which the Government borrows money, bids billions of dollars in both non-competitive and low price competitive orders, lowering the margin for everyone else? | It would be a violation of 18 USC 1001, which is the law against making false statements to the federal government. Paul Mozer, who was a Salomon Brothers trader, received a four month sentence for doing something along those lines in 1994. Bidding on something implies an intent to pay for the thing, which in this case is a falsehood: in so doing, one "falsifies, conceals, or covers up by any trick, scheme, or device a material fact" (that you don't intend to pay for the thing). | While I am a U.S. attorney, the U.K. and U.S. are essentially the same on these issue in practice: "reasonable wear and tear" is a classic issue of fact to be decided by the judge (unlike the U.S. there are never juries in U.K. landlord-tenant disputes) based upon the evidence presented to him and his or her good judgment if the case goes to court. There won't be a lot of case law that is specific enough to provide guidance in your particular case (if any) because cases like these aren't worth appealing and creating case law on and because the law intentionally vests judges with great discretion on these issues and only intervenes in appellate decisions when a judge is deeply out of line. The legal definition of "reasonable wear and tear" is basically vacuous and don't provide much meaningful guidance. I know you are joking, but no, do not set it on fire. You will find yourself incarcerated for arson, with a felony criminal record and a restitution judgment in the amount of the damages and a fine and court costs as well, and your credit record will be screwed and no one will rent to you ever again if they find out by doing a cursory background check. Your mum probably won't even invite you to Christmas dinner this year. If they charge your security deposit and you don't think you owe it, you would have to sue them for a return of the part of your security deposit you don't owe, knowing that you face a risk of paying their legal fees if you lose, but will get your fees if you hire a lawyer and win (caveat: there are more nuances to fee shifting in the U.K. courts than I spell out here which are rather technical). If they say you owe more than your security deposit and you don't pay, they can sue you for the balance, knowing that they face a risk of paying your legal fees if they lose, but will get their fees if they win. In practice, it doesn't really make economic sense for either party to hire an attorney because the amount of the fees is so high relative to the amount of money at stake. The security deposit is 2-4 hours of legal time, and the amount claimed is maybe 7-14 hours of legal time, neither of which is sufficient to address the respective issues economically in a fully litigated hearing. Short of going to court, you can provide them documentation and your video to show that you are right and to discourage them from docking your security deposit (in full, anyway) or suing you, ideally A.S.A.P. before they are too committed to taking legal action. You could also propose a compromise and see if you can get them to agree to it with neither party facing the risk of going to court. | united-states They thought of that. See IRS Pub 550, page 36: You are treated as having made a constructive sale of an appreciated financial position if you: • Enter into a short sale of the same or substantially identical property, So when you short-sell 1 BTC while still holding 1 BTC, it's taxed as if you simply sold your 1 BTC. This makes sense as the transactions are essentially identical in effect. I don't think it matters that the 1 BTC you held was used as the collateral for the 1 BTC you borrowed. In particular, although short sales are usually reported and taxed as of the date when they close, constructive sales are an exception and are taxed on the date of the constructive sale itself: You must recognize gain as if the position were disposed of at its fair market value on the date of the constructive sale. This gives you a new holding period for the position that begins on the date of the constructive sale. Then, when you close the transaction, you reduce your gain (or increase your loss) by the gain recognized on the constructive sale. So this doesn't help in deferring your taxes. | Not as such. As the contract author, you must clearly and specifically identify risks that you want to other party to accept. Your whims i.e. "our own discretion" are not a clearly identified risk. The trivial solution is to state that there are two payments, €150 up front and €850 afterwards. Then, you claim the right to waive (at your sole discretion) part or whole of the second payment. It should be noted that the tax implications of such a contract could be non-obvious. You probably have to claim the whole €1000 as income when the contract is signed, and any waived payment as a discretionary expense. You're unlikely to get a VAT refund on that €850, I suspect. So given that you'd have paid €187 to the Irish government, refunding €850 would be hard. | This is a rather elaborate version of receiving stolen property. It is a crime because you know that the property is not yours and you know who it belongs to. The fact that funds were returned mitigates the punishment that might be imposed, but disgorgement of profits as well as principal would be a typical criminal restitution in such a case. A prosecutor could decline to press charges (and often would decline to do so), but would have the authority to do so. An analogous case that comes up more frequently is when an attorney takes client funds out of his trust account (either accidentally or intentionally) and then uses the funds in a way that produces a profit or avoids, for example, a late payment penalty, and then returns the funds improperly withdrawn from the trust account. This is still conduct for which attorneys are routinely disbarred and prosecuted criminally. Even if the person didn't know that the money belonged to someone else when it was used, the true owner of the money could sue for unjust enrichment for both the funds and the proceeds from the funds. For example, if funds were accidentally deposited in your bank account rather than the correct one due to a transposition of numbers in the account number, and you didn't notice this error, you would have liability to return not just the accidentally deposited funds, but also the profits from those funds, because both would be unjust enrichment. But, in an accidental case where there was no knowledge that the funds were wrongfully placed in your account, you could deduct from the amount to be returned any banking charges you incurred with respect to the transactions and it would not be a crime. | I am unfamiliar with specifically US laws on this but under common law (which US law is derived from) there is the crime of "Theft by Finding", however, because you turned it over to the authorities who, after the required time period were unable to find the rightful owner, the money becomes yours. However, you still have to pay your taxes on it: http://www.foxbusiness.com/personal-finance/2014/07/03/found-money-is-awesomebut-must-pay-uncle-sam/ As far as I can see, income is income whether it comes as cash, diamonds or long lost antiques. As far as the money laundering aspect, that is something the authorities would need to prove - as opposed to you just being lucky. | This doesn't sound like fraud (against you, at least), but it does sound like an unfair or deceptive trade practice, which is outlawed by Section 5 of the Federal Trade Commission Act and perhaps the Pennsylvania Unfair Trade Practices and Consumer Protection Law, both of which prohibit unfair and deceptive trade practices. I don't know about Pennsylvania, but the FTC has on many occasions taken action against companies for engaging in just this kind of behavior. To find out whether you would be able to take action against the other company, you'd want to find a good competition lawyer in Pennsylvania. For some more basic background on the FTC's rules, check out this primer. | No, a penalty clause is illegal, end of story. A contract could include a "liquidated damages" clause – this is how late fees are legal – that if you breach the contract in a certain way, you will compensate the company for the damage that you have done (bookkeeping, interest on money owed) in a standard and reasonable manner. Incidentally, what you describe is slavery, which is illegal throughout the US. The closest you could get is if the company offers a benefit for staying with the company for some period of time, then the employee might forego that benefit if they don't fulfill that aspect of the contract. |
What is the basis that allows a judge to reject a defense in a criminal trial in the USA I have another question inspired from watching Law and Order. Often, a defense attorney will give notice of a defense, and both the defense lawyer and prosecutor will be in the Judges chambers making their arguments, with the judge deciding if they allow the defense or not. Why does a judge have this power? What is the basis in law? Why is a defense attorney not free to use whatever defense they feel best serves their clients? | A judge has the authority to determine what law applies to a case and to instruct the jury accordingly, and also has the authority to determine which evidence is admissible. Presentation of a defense, in practice, involves presentation of evidence supporting a legal theory. In order to be admissible in evidence in an evidentiary hearing or trial, the evidence must be relevant to a legal theory that is in some way connected to the evidence. If no reasonable juror could make a ruling establishing that a legally recognized defense was established based upon the proposed evidence (especially if the proposed evidence is prejudicial to the prosecution case on the basis of reasoning that is not a legally valid defense) it can be excluded. For example, evidence in support of the theory that the defendant murdered the victim because the murder victim raped the defendant's sister six years ago, might very well sway a jury to acquit the defendant. So a defense attorney might want to make this argument. But, this is not a legally recognized justification for murder, so evidence in support of this defense would be excluded as irrelevant by the judge. In federal court, and in states with rules of evidence based upon the federal rules of evidence, the primary legal authority behind this is Rule of Evidence 402: Rule 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible. Some states also have procedural notice requirements for certain kinds of affirmative defenses. For example, if someone is arguing an alibi, a notice of an intent to present this defense must be provided by the defense a certain number of days before trial, so that the prosecution can develop the very different in kind type of evidence needed to rebut that defense, rather than having someone acquitted due to surprise when rebuttal evidence exists but the prosecution doesn't know in advance to locate the necessary witnesses and evidence to rebut this kind of defense. | There are a variety of reasons a judge might be disqualified. It could be that the judge was previous an attorney who represented someone (defendant, victim, key witness) involved in the case, it could be that the judge was a family member or former employer of the defense attorney, it could be that someone close to the judge or the judge personally was a victim of another crime committed by the person, it could be that the defendant or the defendant's family was a personal or family friend. The prior involvement in the protective order case could be a factor as well. The record isn't detailed enough to know. "Held" in this context means that the hearing scheduled for 1:30 p.m. on that date noted was actually conducted, rather than being continued or vacated for some reason. Your guess is as good as mine regarding "CFW" and "DB" in this context. My best guess for DB is "daily booking" and CFW might be either the removed or replacement judge's initials (e.g. Carol Francis Wilson) but those are just wild guesses. Neither appears on a list of Oregon Department of Corrections acryomns or this criminal background check abbreviation list, or this list of Oregon law enforcement abbreviations. The only matches on this list of law enforcement abbreviations and none of the matches to DB (dog bite, dead body, detective bureau) make a lot of sense in this context. | They are not given independence from statute. This clause just says that conviction is not the end goal of the prosecutor. If in light of the evidence, the prosecutor comes to believe a person is not guilty, they are not to proceed with the prosecution. They must not hide exculpatory or mitigating evidence in order to get a conviction. | A summary is here: see for example Section 35 of the Judiciary Act of 1789: 'in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel'. In the same vein, Adams v. United States ex rel. McCann, 317 U. S. 269 held that "an accused, in the exercise of a free and intelligent choice and with the considered approval of the court, may waive trial by jury, and so, likewise, may waive his constitutional right to the assistance of counsel". In Faretta v. California, 422 U.S. 806 it is held that this extends (via the 14th) to state courts. As to the expression "practice law", maybe the meaning of this expression is taken to be self-evident, though clearly it is not. Statutes that prohibit that act for non-lawyers generally specify things such as "for another person" or "holds himself out as entitled to practice law". | There are two important points you need to consider: jurors cannot be challenged (in the US sense), and the judge has wide discretion to handle any problems that arise in his court. If a juror has prior knowledge of the case, or could not be expected to be impartial, the judge (or sometimes the bailiff) will excuse him, and bring in one of the three replacements. If either side's lawyers dislike the look of a juror, they may if the judge allows ask questions to elicit such reasons, and then ask the judge to disqualify (I was on a jury where one of my colleagues was a policeman, and the defence suggested that he could not be impartial; the judge asked some questions and then excused him, and I understand he was never actually empanelled that week). But you are not permitted to select jurors you think will favour you or (equivalently) to ask to dismiss a juror without a factual disqualification; you can't, for example, ask about a juror's politics. Disqualifying a juror is thus rare, and the chance of four jurors having ties to a particular case is so remote as to be not worth worrying about. The second point, and the reason why written authority is hard to find, is that the judge has almost unlimited discretion over any action in his Court that does not infringe statute. There was a case in the newspapers recently where a juror discussed the case he was hearing in the pub, and was therefore dismissed from the jury; the judge consulted prosecution and defence and decided to proceed with eleven jurors rather than start the trial again. This does not mean that 'any trial can be heard with eleven jurors'; it means that in that particular case justice was best served by continuing. There is always the option to request a mistrial (which may or may not be granted) or to say that, a fair trial now being impossible, you intend to appeal on this point; but failing that the judge's decision on any procedural point is binding. | Discovery Basically, you ask. If your opponent thinks your request is out of bounds they object, give their reasons to the judge, you give yours and the judge orders them to produce the evidence or not. A lot of people think court cases have big “ah-ha” movements when a witness reveals something unknown on the stand. This rarely happens because there are no secrets in litigation - both sides have to clearly explain their case before, usually well before, they go to trial. | In the united-states, attorneys are almost never placed under oath. Their statements -- whether they are assertions of fact or legal arguments -- are not evidence, and they are not subject to cross examination. There are limited circumstances in which an attorney would be competent to present actual evidence. In such cases, the attorney would be sworn in as a witness and subject to cross examination, but the attorney would likely also be disqualified from acting as an attorney in such a situation under Model Rule 3.7. | This would establish a new precedent (I assume) You assume correctly. However, a precedent is only binding on lower courts and persuasive on courts at the same level so a trial judge precedent is not very far-reaching. Does this statute takes precedence over (overrules) the previous court precedent? Not exactly. The precedent was good for the old (common) law. Now the law has changed and the old precedent is irrelevant. Courts only interpret the law and legislatures are free to change the law within the limits of their constitutional power. Indeed, a fair number of laws are enacted because the legislature does not agree with how courts are ruling. |
Why aren't foreign VPN companies forced to keep logs? This link explains the inconsistency with what VPN services consider 'logging'. Certainly, there is no way for us to verify their claims without an extremely rigorous independent audit. But even that can be sabotaged. Regardless though, many VPN service providers vehemently claim that they do not keep logs. An example is NordVPN, which is based in Panama and so there is no domestic legislation that forces it to keep logs: NordVPN Privacy Policy: "Our top priority is customer data security. Operating under the jurisdiction of Panama allows us to guarantee our no logs policy, which means that your activities while using the privacy solutions created by NordVPN.com are not monitored, recorded, logged, stored or passed to any third party." What I do not understand is companies like NordVPN have hundreds of servers around the world, most of which are not in the country that they are originally based in. Surely, no-logging is impossible for most of their servers? Or are companies compelled to log depending on where they are based? So US legislation would not apply to a VPN server in the US which is run by a company based in Hong Kong - but this doesn't make sense - wouldn't US legislation apply to them regardless of where they are based? This link says, again, that one of the pros of VPN servers being based in Hong Kong is that companies are not compelled to keep logs (I assume this is in contrast with servers in the US and other countries): "There are no mandatory data retention laws in Hong Kong. Most Hong Kong-based providers offer a “no logs” service, and international companies are not required to keep logs relating to their Hong Kong servers (although some companies, notably US based ones, choose to do so)." Surely legislation does not discriminate based on where a company is based? Eg. all companies that operate in the UK are forced to abide by the Data Protection Act (DPA). Whether or not they are based in the UK does not matter. As long as the data that that company possesses remains in the UK, it has to be treated in compliance with UK law. Also, why would US companies with servers in Hong Kong willingly keep logs if the law is not forcing them to? Sounds like a great marketing tool if they were able to claim they intentionally choose not to log. My assumption here is that any legislation regarding mass surveillance of private citizens is followed by companies the same as legislation regarding anything else (DPA, legislation about the treatment of employees, etc.). Chinese companies with offices in the UK cannot treat their employees according to Chinese law, so why does are they allowed to treat legislation pertaining to internet traffic differently? As for who would do the forcing, the local governments. Eg. the US government, that passes mass-surveillance legislation. If the US government argues they need logs to keep track of the movements of criminals and especially terrorists, wouldn't a company saying "we do not keep logs by choice" be condemned as impeding government counter-terrorism efforts? If the law requires all VPN servers in the US to keep logs, wouldn't a company not keeping logs be in violation of the law and hence 'criminal'? If it's a legal loophole, it sounds like a dumb loophole if politicians are trying to claim they need logs to track down criminals (including terrorists), while allowing VPN providers to not keep logs. | This is tied up in the concept of sovereignty - nation states have control over their territories and citizens and they recognise the right of other nation states to do likewise. The USA, China (Hong Kong) and Panama are all sovereign states, they each decide what the law is within their own territory and they can’t tell each other what to do; they can ask, however, that’s what diplomats do. If a HK domiciled company provides HK based servers then they have to comply with HK law irrespective of where their customers are located. The USA could pass a law requiring US companies (like ISPs) to keep logs of traffic to and from HK servers but they cannot force a HK company to do anything, unless and until it operates in a place where the US has jurisdiction which means both the right and the ability to enforce their law. | Social media platforms are not publishers under UK law (at present), as such, they are not legally responsible for the content they host providing that there is a mechanism for alerting them to infringing material and that, when alerted, they remove it. As to "why", that is a political question. | The law on the web page is not current: as of the beginning of the year, RCW 23.86.030(1) reads (you'll find this under Sec. 9103) "The name of any association subject to this chapter must comply with part I, Article 3 of this act" and is otherwise unchanged. In Article 3, sec. 1301 governs names, giving the sec'y some discretion to deem a name to not be distinguishable from another, saying in (3) "A name may not be considered distinguishable on the records of the secretary of state from the name of another entity by virtue of...variation in the words, phrases, or abbreviations indicating the type of entity, such as "corporation," "corp.," "incorporated," "Inc.,". It does not list "co-op", but there is no legal requirement that the list be exhaustive. This discretion is, however, related to distinguishability. However, (4) then says An entity name may not contain language stating or implying that the entity is organized for a purpose other than those permitted by the entity's public organic record. and I think that means "no". Note that LLCs, LPs, LLPs, business corporations, nonprofit corporations and cooperative associations all have name requirements of the type "must contain" and "may not contain" (a cooperative association, oddly, has no "must contain" requirements). I would say that we have to conclude that "legislative intent" was to more closely align names and legal status, and the new "purpose-implication" language isn't brilliantly clear, but that is what the intent of the law is. This is one of those issues that could easily work its way to the Supreme Court, if someone wanted to make a state case of it. | The BBC iPlayer restrictions are not, as far as I'm aware, based on regulations; they are based on licensing agreements (in fact, the page you link to says this explicitly). Whether the same is true of programs from other services in other countries--or even other services in the UK--is going to depend on the contracts between those services and you and the contracts between those services and their content providers. | You wrote: As far as I believe, it is permitted under GDPR to record and store non-anonymized web server access logs, as these can be useful for security reasons. True, Recital 49 GDPR: The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, by public authorities, by computer emergency response teams (CERTs), computer security incident response teams (CSIRTs), by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. You asked: My question is whether this anonymization process counts as processing personally identifiable data under GDPR? IP addresses are personal data in some cases, so yes, you're processing personal data. Then, these anonymized logs will be fed into an analytics tool to provide stats on unique visitors, page hits, etc. These are purposes considered compatible with initial purposes according to Article 5.1.(b): Personal data shall be (...) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for (...) statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’); As a matter of fact, you might be required to anonymize the data for those purposes, see Article 89.1: Processing for (...) statistical purposes, shall be subject to appropriate safeguards, in accordance with this Regulation, for the rights and freedoms of the data subject. Those safeguards shall ensure that technical and organisational measures are in place in particular in order to ensure respect for the principle of data minimisation. Those measures may include pseudonymisation provided that those purposes can be fulfilled in that manner. Where those purposes can be fulfilled by further processing which does not permit or no longer permits the identification of data subjects, those purposes shall be fulfilled in that manner. If I were to anonymize the logs and continue to use them exclusively for security reasons, would that change anything? No, you would be processing data in a manner compatible with initial purposes (ensuring network and information security). Or does it not matter what I do with them once they are anonymized? Yes, it does. If you're not using them for "archiving purposes in the public interest, scientific or historical research purposes or statistical purposes" then you're using them for purposes incompatible with initial purposes. You would need to find new legal basis for processing. does this extra anonymization process on top then take it over the line meaning that consent and a privacy notice would be required? It depends on what you want to do with anonymized data. In your case, for security purposes or security and statistical purposes, you don't need the consent and there is no requirement for the privacy notice (but sure, it would be nice to publish one). For other purposes it might be different. | The website owner brings in an expert programmer who testifies that the user cannot have gotten to a certain part of the site (or download, etc.) without having clicked to accept the terms of service, and that this document they're holding is a true and correct copy of the terms of service as of that date. That's evidence in favor of the site, and an adverse party has to have stronger evidence in order to overcome it. If the person didn't save a copy of the terms themselves, they'll have a hard time on this. Then the other party's attorney tries to discredit the programmer by asking questions like "how do you know there are no bugs in the software which could have allowed somebody to reach this without agreeing to the terms of service" etc. Apparently, some sites don't require users to click indicating agreement. If the company has significantly changed the site, terms of service, etc. since the time the user registered, and doesn't keep any copies of old versions around, and admits this, they'll have a hard time enforcing an agreement (as they can't produce a copy of it). If the user kept a copy, the user might be able to present that. It's up to the finder of fact to decide what to believe and how much weight to give the various witnesses' testimony. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "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 the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "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;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, 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;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | Yes, but ... It doesn’t protect you. Let’s imagine you put such a clause in and a person in Europe used your service notwithstanding: they’ve broken the contract but you’ve broken the law. You get the fine and they get ... nothing. Because you can’t contract outside the law you never had a valid contract with them so you have no basis to sue. Further, because you are purporting to something you can’t legally do, you are probably on the wrong side of misleading and deceptive consumer protection law: which is another fine. If you can ensure that you don’t breach local law - like by not operating over the internet - then you can choose not to deal with e.g. Europeans. If you can’t guarantee that, then you’re stuffed. |
Can I use the Wi-Fi logo on a website? Despite reading Wi-Fi alliance style guide, I don't understand whether I can use the Wi-Fi logotype on my website. The style guide seems to target the producers of Wi-Fi equipment only; my case is different. More precisely, I have a web page which, among others, explains how to configure a device to access a specific Wi-Fi access point. In order for the users to easily identify that the page talks about Wi-Fi, I want to include the Wi-Fi logotype. Not the one with “Certified” on it; just the plain one. Can I do it? Or is Wi-Fi logotype reserved exclusively to the hardware which connects through Wi-Fi? | In order to use a trademarked logo on a product you would need permission of the trademark owner's, just like with any other trademark. However, you don't need permission to use a trademark outside the context of trade and commerce. For example, despite the fact that the Wi-Fi Alliance's own name is a trademark, you didn't need permission to use it in your question. Similarly Wikipedia didn't need permission to use the Wi-Fi Alliance's logo in their article on the organization: However, given your stated use, you'd be better served by not using the Wi-Fi logo on your web page. This logo is designed to be used to identify products that have been certified by Wi-Fi Alliance, not as a generic Wi-Fi symbol. Whether your page would infringe on the trademark or not, the use of logo could cause confusion and not send the message you're intending. | Yes, you may The layout of the board and its appearance are not protected by copyright, because they are not expressions or any other type of copyrightable content. Even if they were (say if some protested art was displayed on the board) you are displaying this for instructional purposes, and not harming any market for the board, so fair use is likely to apply (in the U.S.). The device could be protected by patent, but you are not copying or imitating the board, nor showing anyone how to do so, so that would not apply. You are not selling or advertising the board, nor knock-offs of it, so trademark protection would not apply, even if a protected trademark is visible on th board. Just in case, be sure to make clear that your video is not authorized or endorsed by the maker of the board. | The official EU-legislation does not use the word "cookies", except in the recitals. The "Cookie-Law" is part of the Privacy and Electronic Communications Directive 2002/58/EC and is amended by Directive 2009/136/EC, where the relevant text of Article 5(3) is found: Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service. This is a Directive, which is not directly binding, member states must implement it in their own law. But there will not be large differences to the text above. The guidance from the UK's ICO includes useful examples in particular about the exceptions to obtain consent. There is an exception to the requirement to provide information about cookies and obtain consent where the use of the cookie is: (a) for the sole purpose of carrying out the transmission of a communication over an electronic communications network; or (b) where such storage or access is strictly necessary for the provision of an information society service requested by the subscriber or user. The best example is a shopping cart: This exception is likely to apply, for example, to a cookie used to ensure that when a user of a site has chosen the goods they wish to buy and clicks the ‘add to basket’ or ‘proceed to checkout’ button, the site ‘remembers’ what they chose on a previous page. This cookie is strictly necessary to provide the service the user requests (taking the purchase they want to make to the checkout) and so the exception would apply and no consent would be required. And there is a negative example which is unlikely to fall within the exception: Cookies used to recognise a user when they return to a website so that the greeting they receive can be tailored In your question you explicitly state localStorage to keep a user logged in. LocalStorage is "storing of information in the terminal equipment of a subscriber". If you want to keep a user logged in, the user has performed a log in step. So you provide a service to keep the user logged in, which is exactly what the user wanted. So the exception would apply and you don't need to obtain consent. For example this stackexchange website also keeps me logged in, so the exception would apply here. However, you must make sure that you don't use the cookie/localStorage in a way which is incompatible with the exception. For example it would probably not be allowed to use the same cookie to count unique visitors to your website. If personal data is processed to store login data, Art. 6(1)(b) GDPR would probably apply; Processing shall be lawful only if and to the extent that at least one of the following applies: (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; So the GDPR would also not require you to ask for permission. | Probably not, because you should be in a position to rely on the Safe Harbor provision of the DMCA. Safe Harbor protects service providers who provide open, non-moderated spaces for users to directly contribute content. Safe Harbor means you do not need an army of moderators to inspect every message posted to the site or system. It is essential for sites like Twitter, Youtube or StackExchange to exist. You are not liable for that content if you provide a means for IP owners to report copyright violations, and promptly take down any content which an IP owner reports as violating. You don't need to get in the middle of whether that's really true; there's a mechanism for the user and IP owner to "duke it out" directly at no risk to you. However you must take the required steps. For instance you must register an agent, and respond timely to DMCA takedown notices, which means you must be reachable as per the law. Your designated agent address must be staffed 9-5. Note that the "Designated Agent" can be the same person as the "Registered Agent" that you already must have when you are an LLC or corporation. And you'll want to be an LLC or corporation by the time you get big enough to worry about copyright lawsuits. | It is legal for a manufacturer to sell a device which is capable of being misused. For example, a wifi-capable router can be sold even if it is "open" by default. A Bluetooth device has a shorter range than wifi, but in principle can connect to any other device. An owner's legal liability is not different given wifi vs. Bluetooth. Whether or not there is criminal liability for a third person who connects to the device also does not specifically depend on whether the device uses Bluetooth technology, as opposed to some other technology. 18 USC 1030 is the general federal law prohibiting "unauthorized access". In the case of a bed, two legal question arise: is it a "computer", and is it "protected"? It is an electronic high speed data processing device which performs logical, arithmetic, storage and communications facilities, i.e. it is a computer (in the legal sense). It probably is not protected, because it is not "used in or affecting interstate or foreign commerce or communication", that is, it is not connected to the internet (unless it is). State laws tend to be broader, not having the "interstate commerce" limitation, so accessing the bed would violate Washington's analog of the federal law. However, under Washington law, the access is probably not "without authorization". That term is defined as knowingly circumvent technological access barriers to a data system in order to obtain information without the express or implied permission of the owner, where such technological access measures are specifically designed to exclude or prevent unauthorized individuals from obtaining such information, but does not include white hat security research or circumventing a technological measure that does not effectively control access to a computer. The term "without the express or implied permission" does not include access in violation of a duty, agreement, or contractual obligation, such as an acceptable use policy or terms of service agreement, with an internet service provider, internet website, or employer. The term "circumvent technological access barriers" may include unauthorized elevation of privileges, such as allowing a normal user to execute code as administrator, or allowing a remote person without any privileges to run code. One question is whether there is any technological access barrier that the user circumvents (I don't know if it is possible to circumvent "hidden mode"). Since the term "may include ... allowing a remote person without any privileges to run code", and since playing music on speakers involves running code, then the remote user may be criminally liable. On the third hand, the language of that paragraph ("technological access measures are specifically designed to exclude or prevent unauthorized individuals from obtaining such information, but does not include ... circumventing a technological measure that does not effectively control access to a computer") clearly indicates a legislative intent to address deliberately overcoming active access barriers and not accidentally connecting to an unprotected, open system. Plus, the law also says that you are accessing the computer "in order to obtain information", but that is not the purpose of transmitting sound to speakers. | In united-states trademark law, 15 U.S.C. § 1111 provides that: Notice of registration; display with mark; recovery of profits and damages in infringement suit Notwithstanding the provisions of section 1072 of this title, a registrant of a mark registered in the Patent and Trademark Office, may give notice that his mark is registered by displaying with the mark the words "Registered in U.S. Patent and Trademark Office" or "Reg. U.S. Pat. & Tm. Off." or the letter R enclosed within a circle, thus ®; and in any suit for infringement under this chapter by such a registrant failing to give such notice of registration, no profits and no damages shall be recovered under the provisions of this chapter unless the defendant had actual notice of the registration. Notice that display of the symbol is optional, the registrant "may give notice" by using the phrase or the ® symbol. But if such notice is not given a significant element of damages in case of an infringement is forfeit unless the infringer had "actual notice" of the registration of the mark. Since the purpose is to give notice that a word, symbol, logo or other indication is in fact a registered mark, making the registration so small that it cannot easily be seen might tend to defeat that purpose. If an infringer claimed not to be aware that an indication was a registered mark, and if the notice was displayed or printed in so small a form that this claim was plausible, it might raise an issue in an infringement suit. I have not found any caselaw on the point. "Finessing the Details of Type: Registered, Trademark, & Copyright Symbols" by Ilene Strizver advises that: These symbols are used at so small a size that they should be neutral in appearance, yet clear at the size they will be reproduced at ... when using a ® or a ™ after a word, the size should be adjusted as necessary, independently from the rest of the text, to look clear and legible, yet unobtrusive. Its proportion next to the neighboring word or glyph depends a lot on the final size of each appearance. A general guideline for text is to make these symbols a little smaller than half the x-height. As the type gets larger, the symbols can become proportionately smaller, especially in headlines. However this is a guide for typesetters and graphic designers, and is not legal advice. Several sources indicate that a single use of the R-in-a-circle in connection with a particular mark in any given document or set of packaging is sufficient (as is also mentioned in a comment). If elsewhere in the same web site the logo is displayed in a larger size, with a larger version of the symbol, that would probably offer all the protection needed under US law. This answer is US-centric. Law elsewhere may or may not be similar. | could this mean my employer owns the idea and anything I develop --since I would use the same technology for my idea that I do at work? No, unless by "technology" you mean the employer's materials or resources (see condition 3 of the clause). Your remark that "this is completely and utterly unrelated to [employer's] business model" survives items 1 and 2. Likewise, working on your idea outside hours survives the corresponding part of item 3. Would this also mean that any open-source software I develop outside of work automatically belongs to my employer? No, unless the software you develop is "based on [your] knowledge [etc.] of (COMPANY)". | Can't we get a legal action about AdBlocker as web masters? No. I assume that by "web master" you mean a server admin who contracts with entities which are seeking to advertise their goods and services. An advertiser pays the server to transmit (or send(), in terms of a socket API) certain content to whoever submits a GET or POST request ("the client"). The scope of the contract ends there, and the end consumer or client is not a party to that contract. Any point beyond the server admin's routers, it is perfectly lawful for end users to run some program on the client side where the purpose of that program is to (1) parse any packets received in the client socket, (2) filter out some of it, (3) and forward the rest to a browser. Bringing legal action against AdBlocker would be somewhat akin to suing producers of TV remote controls under the allegation that the mute button functionality blocks advertisement content. |
Can someone be compelled to prove they are complying with a contract? (If contract doesn't stipulate such proving) I serve on an HOA board, and a fellow board-member believes we can compel someone to prove they're not violating a rule, and punish them if they are violating it OR IF THEY REFUSE TO PROVE they aren't. The rule in this example is "no inoperable vehicle in the driveway". We haven't seen the car move. But we don't have 24x7 surveillance on that driveway either. Even if it's not moving, that doesn't mean it's not capable of moving (inoperABLE). Fellow board-member believes it's inoperable and wants to give 7 days to move it. Our bylaws never stated a 7 days limit, nor do they have any language requiring homeowners to testify against themselves or provide evidence to their defense. Fellow board-member's argument is that it's inherent to any contract that both parties have to prove they're in compliance. I don't know where she got that, and she refuses to cite any sources. The state is Kansas, USA if that is relevant. I'm not looking for advice on the car. I'm asking about the broader legal argument of having to defend one's self. Is not the burden of proving the violation on the accuser? I feel it is at the very least reckless to go accusing someone if we don't have any evidence of an actual violation. I'd very much appreciate citation of sources in the answer that I can present at next board meeting to have a better informed discussion. | Can someone be compelled to prove they are complying with a contract? In this context, yes, since its apparent breach is evident. The other answer rightly explains the notion of preponderance of evidence, which pertains to the procedural aspect. Here, I will mainly address the substantive standpoint as per the situation you describe. The HOA rule most likely is intended to serve one or more purposes, such as preserving the prestige of the neighborhood, and to avoid safety hazards. The prolonged presence of an abandoned vehicle --just like any piece of junk--- tends to contravene those purposes. Regardless of the vehicle's true state, the effect of its apparent abandonment is visibly detrimental to the neighborhood, and it frustrates the ultimate purposes of the HOA rule: to preserve safety conditions in the neighborhood as well as the value of the properties. Also, the presumption that an abandoned vehicle is inoperable seems reasonable. The most straight-forward way to disprove the board's allegations of inoperability is to actually move the vehicle at least once in a while. Accordingly, the owner's inexplicable reluctance to take that simple step reinforces the supported suspicion that the vehicle is indeed inoperable, and thus in breach of the HOA rule. | 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. | 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. | 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. | It is very unlikely that such a sentence ("A 6 month non-compete/solicitation is required") is enforceable, because it is way too broad. The reasonable interpretation of the sentence is that the employer has thereby put the employee on notice that such an agreement will be required, and the actual terms of that agreement will be spelled out at that time, but that sentence does not constitute an "agreement". Ad actual agreement has to be supported by consideration, and have a reasonable scope (including place and activities). Texas law disfavors restrictions on job-changing, so an agreement would have to go beyond just saying that "a non-compete is required". Since the letter asserts that it is not a contract, there is no clear contractual obligation (they can fire you anytime they want, it seems). | To what degree are such emails admissible in court as evidence, and what weight do they carry? Your own statement, when offered by you as evidence, is hearsay, unless it comes within an exception to that rule. Recorded recollection might be one of the better exceptions. There is also a chance that you could get it in as a business record of the company if you were using a company email account and the company stores all of its email communications. The documents also sometimes come in to provide fair context for a conversation with a party-opponent's statements that are admissible. It appears that Canada does not follow the modern British rule (which repealed the hearsay rule in civil cases in 1995), which if it were available, would come in without any difficulty at all. But, Canada does have what it calls a "principled exception" (which is somewhat broader than the parallel U.S. residual hearsay exception) that is generally available if the document can be shown to be reliable and there is an unavailable witness, or if there proponent of the document can show that it is reliable and necessary for other reasons. Even if the document itself is not admissible since it is hearsay, you could still testify as to what the boss said from your own recollection, and then have your lawyer ask you why you are sure that this is what was said. You would answer that you contemporaneously wrote a confirming letter to the boss spelling out what was said and you reviewed it to refresh your recollection before testifying at the hearing or trial. These kinds of confirming letters are used quite frequently in business and employment litigation. And, in my experience, these statements tend to be surprisingly effective and persuasive, because, while they do not foreclose the possibility that the person writing it was lying or inaccurate in the confirming email account, it does rule out the possibility that you forgot exactly what was said, and you provided the boss with an opportunity to dispute you which the boss didn't feel an obligation to correct. If one party has a coherent account in confirming emails of what was said, and the other party is trying to remember what happened a year or two earlier without notes from the witness stand, the person with the coherent, documented account is almost always going to come across as more credible unless the other side can show that your confirming emails are not infrequently gross misrepresentations of what really occurred. (I've also dealt with witnesses like that now and then.) | No crime is committed if a person performs a service and ineptly describes the service. To change the context a bit, I might contract with a guy to build a wall and he says he will charge me for installing a "Swedish drain" when in fact what he will install is called a "French drain". If he installs the thing, it does not matter (legally) whether he calls it by the conventional name. I am not relying on the distinction between French and "Swedish" drains, and that is not material. However: he may specify that the drain will use 18 inches of 1.5" drain rock, but he uses (and intends to use) 18 mm of 3/8" crushed rock, and that is a material fact. In the latter case, he has committed fraud. The same considerations go into dealing with "unnecessary" service, which however is more about "what he said". Let's assume that you come in with a flat tire and the mechanic offers to overhaul the engine. If you agree to this service, that is not fraud, because he did not say something false that you depended on. If, however, you ask "Why would overhauling the engine be necessary" and he says, I dunno, "Because by law, I can't repair a tire without first overhauling the engine", or "Because you flat was caused by astral radiation from a poorly-tuned engine", then that would be fraud – the statements are false, and you relied to their truth, in agreeing to the service. On the third hand, reasonable statements like "it might help", "it could work" are not deceptive, even if it turns out they are not true. Fraud is not about statements that "turn out not to be supported by the facts", it is about statements that you know to be false. | There are three answers here. First, as is common on this site, you are using the term, "legal" and "illegal." Those are not legally meaningfully terms. A good lawyer won't use those terms to mean allowed or disallowed. We talk in terms of potential civil or criminal liability, or other sanctions and consequences. To say that something is "legal" does not communicate much. Second, all contracts are governed by a duty of good faith. That means that you cannot try to "trick" someone with the terms of the contract and expect to enforce that contract against them and you cannot try to skirt your obligations by finding a tricky form of compliance not within the mutual understanding of the agreement. As with all things, defining good faith is not easy, and depends on the specific context of a situation. It is worth distinguishing between the duty of good faith, and the duties one owes to a fiduciary; good faith is surely far less, but nevertheless still meaningful. Third, a defense to non-performance of a contract is that the agreement as written is unconscionable. A contract that is a grossly unfair deal where the contract was not actively negotiated (i.e. Blindly signing a bad form contract), may fall under this category. Note: I am not your lawyer; this is not legal advice; contact a licensed attorney in your area; do not rely on my statements; I merely am providing a general answer that is academic in nature. |
Could you theoretically sell financial assets in the US without coming under the jurisdiction of the federal government? So let's say you were some financial market that operated solely in a US state so all of your transactions never crossed state lines. Would federal government agencies like the Commodities Future Trading Commission be able to regulate you? As far as I understand it, it shouldn't because it's not interstate commerce, right? | No. Imagine, for instance, that you're a dairy and poultry farmer in Ohio. You grow a small crop of wheat every year to feed your animals. From whatever is leftover, you take enough to make flour for yourself and your family. After that, you sell whatever is left to someone locally. You could argue that your wheat-related activities would not be interstate, that they would not be commerce, and that they would have at most indirect effects on interstate commerce. But the Supreme Court would reject that argument, as it did in Wickard v. Filburn, 317 U.S. 111 (1942). Even if appellee's activity be local, and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as "direct" or "indirect." So the general rule is that any activity that has a "substantial economic effect" on interstate commerce -- by reducing demand, for instance -- is within the reach of the federal government's authority to regulate. While there continues to be controversy over this broad interpretation of Commerce Clause authority, it's a well-settled principle, and everyone recognizes that practically speaking, there's virtually no commercial activity that Congress cannot regulate. | It depends in part on what you mean by "money". US $100 bills are a prime example of "money". Art 1 §10 Cl. 1 of the US Constitution says No State shall ...coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts... Under the constitution, only the federal government can "print money" in the "universally usable" sense. Anyone can print or otherwise "emit" objects with economic value, and such objects can be voluntarily accepted in trade. State and local governments can incur debts and thus spend money now that they do not yet have, as long as there is no legal limit on a government's ability to go into debt. California could issue IOU-bucks with the intent that a holder could redeem them as real federal money or as gold or silver at some point. This limits the ability of a state treasury to print money, since in principle and practice it is redeemable in gold or silver. Each state has some set of laws and constitutional provisions that prevent writing rubber checks ad infinitum, for example only allowing debt for large capital projects (building) and requiring voter approval; requiring expenditures to not exceed projected revenues; granting emergency debt-mitigation powers (e.g. hiring freezes) to the governor when a state does go into unauthorized debt. In California, Art IV §12 of the state constitution requires a balanced budget, meaning that the state cannot create infinite obligations without infinite revenues. From the legal perspective, private banks do not create money, although non-legally, people may talk about what banks do as "creating money". At that point in the discussion, we will have left law and moved to the realm of economic theory. | There are certain requirements of Statehood according to the Montevideo Convention on Statehood of 1933, which is just a codification of international customary law: a permanent population; a defined territory; government; and capacity to enter into relations with the other states. Is it "legal" to buy a piece of land and claim it to be another country than before(either inventing a new one or migrating it to an already existing one)? According to international law, it is. Sure. But just because you say something is the case, doesn't mean it is. Always. Sometimes it is. But for present purposes, let's say that if you found an uninhabited island and said that you were a country, that wouldn't be the case - nor if you bought it from a man living on it. If you found some land that belonged to another country and decided to claim it as that of an existing country, then it would depend on the specific circumstances. That's exactly what happened to the Krim island in the Ukraine(now Russia maybe?), right? I don't think so. As far as I know, the annexation of territory isn't considered sale. In any case, the ownership of this land is still under dispute. So, if it's possible without the influence of these international institutions, trying this in an area with their influence would be easier, right? If trying this means declaring some land you have purchased to be a new sovereign state Nope. You probably still don't meet the requirements for statehood. If trying this means the acquisition of some land by an existing sovereign state Maybe. Probably not. The Montevideo Convention requires that statehood not be gained through force; while member states' interests may be greater where they are more invested, the requirements for acquisition of territory are the same no matter where you are. What would prevent me from creating my own nation? Money, defensibility, recognition, the fact that you probably don't own any land that you "buy" (depending on the jurisdiction and real estate system), the fact that you generally can't unilaterally declare yourself a sovereign state. | Laws against such actions are not stated in terms of popular and fluid concepts like "computer virus", they are stated in terms of clear concepts like "unauthorized access". There are federal and state laws against this. This web site lists and links to all of the state laws on the matter. There is also a federal law: a detailed legal analysis by DOJ is given here. There are some limits to federal jurisdiction, for example "protected computers" include "computers used in or affecting interstate or foreign commerce or communication". The term "affecting interstate or foreign commerce or communication" is widely used in federal law, and can be used to prohibit growing feed for your own animals. Anything that you "send" clearly affects interstate commerce (the internet is internationally connected). 18 USC 1030(a) says Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains...(C) information from any protected computer Essentially, a computer connected to the outside world is protected. The key here is "without authorization". If you authorize MS to report back stuff about your computer, that is not unauthorized. It may not be possible to use their product without giving such authorization, in which case you can use a different product that doesn't require that you grant authorization. There is also the possibility that some software producer has technically violates the law because they think that it's okay for them to access the computer as long as they do no harm. Typically, people are not aware that they have granted software publishers access to their computer. The concept of "harm" is pretty much irrelevant to computer-crime criminal law. It would be relevant, though, if a plaintiff were to sue someone for sniffing around their computer: then you'd have to show that you were damaged. | The Validity of State Wealth Taxes Yes. States can impose wealth taxes, although this doesn't clarify the validity of a federal wealth tax. States have broader taxing power than the federal government in terms of kinds of taxes that they may constitutionally impose. A state may impose any tax (1) that does not unduly discriminate against a federally protected constitutional civil liberty (like freedom of the press), (2) that does not purport to tax the federal government (arguably any other sovereign) without its consent, (3) that does not unduly discriminate against interstate commerce, and (4) that has some rational basis. Apart from these specific limitations and (5) any found in state law or the state's constitution, (6) a state's taxing power is plenary as to conduct or activity or property that has a sufficient connection to the state to provide it with jurisdiction. A recent U.S. Supreme Court case repealed some clear rules of the road regarding what states do not have the jurisdiction to tax, effectively increasing state tax jurisdiction considerably, for example, to impose sales taxes on Internet retailers. the biggest problem for a state like California trying to extract revenue from its uber-wealthy populace would be that they would simply move their residence and use any other possible legal loophole to avoid having to pay. This is true. The primary question regarding the validity of a state wealth tax would not be whether a state could impose a wealth tax, but what assets could a state make subject to its state wealth tax. This might be easy to answer in the case of real property, but hard in the case of intangible property or property held via entities. Federal statutes may, however, establish which states have jurisdiction to tax which assets with a state wealth tax as part of the power to regulate interstate commerce, or by ratifying a compact reached between multiple states which have state wealth taxes. Still the facts that many countries in the European Union impose or have historically imposed wealth taxes that generate significant tax revenue, despite the easy ability to the affluent to relocated to other countries in the E.U. that is closely analogous to that of U.S. states seeking to do the same thing, suggest that this is not an insurmountable task, even if there might be some leakage of untaxed wealth at the margins. The Validity of Federal Wealth Taxes In contrast, Congress may only impose taxes expressly authorized by some provision of the U.S. Constitution as amended. The applicable case law on the issue of the constitutionality of a federal wealth tax is not entirely settled. The gift, estate and generation skipping transfer tax system has been held to be constitutional, but since this is a tax imposed on transfers of wealth, it is arguably a tax in lieu of an income tax treated separately for ease of administration (since gifts and inheritances are within the core definition of income in the Internal Revenue Code at Section 63, but then specifically exempted from income taxation in lieu of donative transfer taxes like the gift and estate tax, in a separate statutory Section 102 of the Internal Revenue Code.). Federal property taxes in areas not in exclusively federal jurisdiction (e.g. Virginia rather than the U.S. Virgin Islands) were briefly in force in the 1700s, but were repealed before they could be subject to a constitutional challenge. Income taxes, even at 90% marginal tax rates, have been upheld as valid. The analysis and doctrines involved are rather involved for a short answer in this forum, and I am fairly certain that there is published legal scholarship arguing both sides of this question of first impression. In a nutshell, a federal tax must either be an income tax; tax imposed on states rather than individuals on a per capita basis; or an excise tax or duty or tariff. The first two types of taxes are comparatively well defined. The third is the subject of thin, mushy and somewhat inconsistent or indeterminate case law. One could argue, for example, that a wealth tax is really a form of income tax on imputed income from assets that could generate additional value to the owner even if the value that arises from this ownership is not monetized or realized. This argument would be particularly strong if wealth taxes paid with respect to an asset were allowed as a tax credit against taxes imposed on income generated by that same asset, in a manner similar to the foreign tax credit today. A wealth tax clearly isn't a per capita tax on a state government. No such tax has ever been imposed for any meaningful amount of time and has never been a more than nominal source of federal revenues if it has ever generated any federal revenues. There is also a credible argument that a wealth tax is a constitutionally valid excise tax or duty or tariff, focusing on the excise tax component, which is quite ill defined, because the courts have tended to side with the government on issues of the scope of the federal power to tax except in the clearest and most blatant cases of violations of the federal power to tax. | On the first page of https://www.gov.uk/duty-free-goods/overview you find: "You can bring some goods from abroad without having to pay UK tax or ‘duty’ (customs charges), as long as they’re for your own use." And on the next page "... will use them yourself or give them away as a gift". This clearly doesn't cover anything that you bring into the UK to sell it. And a bit further on the site it says "You must tell customs (known as ‘declaring’) on arrival in the UK if you have goods: ... that you plan to sell". Since you are asking here, it is quite obvious that you intend to sell :-) You said "e.g. say this guys comes every month from Russia to France for unrelated business, each time he fills up his luggage with the maximum allowed amount of goods that comply with custom laws". If this guy sells the stuff to you, then the maximum allowed amount of goods to import without paying taxes is zero. Once he is willing to pay taxes, there is no limit. Obviously regularly importing things from Russia or France and selling in the UK at a profit means that he is running a business in the UK, which means he would have to register a business, pay corporation taxes etc. It's all a matter of degree; for small amounts nobody cares (up to some limit you don't need to register a business or pay taxes; I don't know the details). | The applicable law is the New Zealand Anti-Money Laundering law. The regulations describing exactly what is covered don't mention Bitcoin cleaning, but the "wire transfer" and "currency exchange" bits probably cover such a thing. I certainly wouldn't like to be the test case. There was also this case in Europe. | The United States even allows private ownership of tanks and howitzers with only fairly modest regulation, although the demand is small and some sort of license is required. Most U.S. regulations would be at the state and local level. It is rare for state governments to place regulatory barriers on the ownership of what is basically an armored car, although detailing it in a manner that misleadingly conveys the impression that it is a law enforcement vehicle is usually prohibited. Security companies handling deliveries of cash and executive transportation services currently use equivalent vehicles on a regular basis. Some armaments might be regulated at a local, state or federal level in the U.S., to the same extent that they would be if they were freestanding. Even if the company declined to sell one to you, you could probably buy one in an auction of police department or military equipment that the selling government no longer needs. Such auctions are held on a semi-regular basis. |
What consequences are there to ignoring GDPR rules as a non-EU entity? If a non-EU entity ignores the GDPR rules, including not paying any fines they receive from not following them, what consequences are they subject to? Can a company simply decide to ignore GDPR rules while still providing their services to EU citizens? for clarity: assume the company does not have anything in the EU: No local offices, no support staff, no remote workers, no contact details, nothing that would allow someone to make the case that they fall under EU jurisdictions. However, the products they provide follow relevant non-GDPR regulations that deal with health and safety. They just don't want to deal with GDPR rules because they think those rules are nonsense in their case. | Enforcement against non-EU entities is difficult, and especially digital services would be impossible to shut down. Ultimately, enforcement would depend on judicial assistance between the relevant EU member state and the jurisdictions where the data controller is established or has relevant assets. Your case involves physical goods and other regulations though, so that (some amount of) compliance by the data controller is necessary in order to have continued access to the EU single market. Which instruments for enforcement of fines are available depends on the EU member state, but could e.g. involve confiscation of products or payments. A non-EU B2B service provider would also have economic incentives to comply as EU data controllers cannot share personal data unless an adequate level of protection is ensured. In reality, it is fairly unlikely that non-EU data controllers will get fined anytime soon because data protection authorities tend to prioritize more clear cut cases, and tend to stay within their jurisdiction. Of course, non-EU data controllers are usually required to register an EU representative precisely to subject them to a particular authorities' jurisdiction, but a non-compliant controller is unlikely to do that. A note on the GDPR's territorial scope: it is far less extraterritorial than some people believe. Per GDPR Art 3(2) the regulation applies to non-EU data controllers, (a) to the extent of their processing activities that relate to offering of goods and services (also unpaid services) to data subjects in the EU, or (b) when they monitor/track behaviour of data subjects as far as the behaviour takes place in the EU. For example, a B2C company would have to comply with the GDPR regarding how they handle shipping addresses of their EU customers. The EDPB has issued in-depth analysis as part of their guidelines 3/2018 on the territorial scope. However, the ECJ has found that some of the GDPR's effects are confined to the EU. For example, Google has to hide some results from EU searches in order to comply with the GDPR's Right to Erasure, but cannot currently be forced to hide the results from non-EU searches. | The critical part is the nature of the relationship between you, the website provider, and the provider of the material you embed. If the embed-provider acts as your data processor, then things are generally fine. The GDPR does not really distinguish between personal data processing activities that you perform yourself versus activities that you've outsourced to third parties. However, you would remain responsible for compliance. This also means that per Art 28 GDPR, you will need a contract with that embed-provider (sometimes called a “Data Processing Agreement”, DPA). This contract stipulates that the processor will only use the personal data as instructed by you, but not for their own purposes. With the Google Fonts case, it must be highlighted that Google does not act as a processor for this service. Google does not offer a DPA that covers the Fonts CDN. While Google promises that it doesn't use the personal data collected in this context in any nefarious way, there are zero contractual guarantees for website providers. So we have to consider the scenario when the embed-provider is an independent data controller. We as the website provider have no control over what the embed-provider does with the collected data, our control only extends to whether or not we cause the website to disclose data to that third party. But this is still processing as personal data (see also the CJEU Fashion ID case), and we need a legal basis for this data sharing. In the Google Fonts case, the court in Munich found that there was no legal basis for using Google's CDN. There was no consent, no contractual necessity, and no necessity for a legitimate interest. After all, these fonts could all be self-hosted. (Technical remark: and given how modern browsers enforce cache isolation and provide HTTP/2, serving fonts from your main domain is probably faster anyway). Consent management services will typically act as your data processor. You don't need a legal basis for “sharing” data with them, because the processing remains under your control. As far as the GDPR is concerned, loading a script from your processor's servers is equivalent to loading a script from your own servers (which you're probably hosting via a another data processor anyway). Sometimes, the necessary data processing agreement is already part of the standard terms of service, sometimes it's a separate document that has to be signed. Figuring this out is your responsibility as the data controller, before deploying the service. Art 6 GDPR doesn't say that you always need consent. It says that you need a legal basis, for which paragraph 1 enumerates six choices. For a lot of use cases, a “legitimate interest” will be appropriate, though it requires a balancing test. Sometimes, other laws mandate that you use a particular legal basis. For example, the ePrivacy Directive says that you must get GDPR-consent when accessing or storing information on the user's device (such as cookies), unless that access/storage is strictly necessary to provide a service explicitly requested by the user. | Q1. Is there a requirement under GDPR for data processors to disclose sub-processing arrangements and the names of the organisations involved in this? "The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes." -- EU General Data Protection Regulations (GDPR) Article 28 Paragraph 2 This clearly states that the processor would need to make clear that they are subcontracting the services and get permission for this as part of the contract, but doesn't specify whether the subcontractors must be named and identified. Perhaps there is other prior existing subcontracting legislation that requires them to be named? Some procurement contracts as supplied by controllers may specify a list of nominated (allowed) sub-contractors or require the full identification of sub-contractors though I've not found anything in law that requires they be named other than as part of a specific contractual obligation. Q2. Is there a requirement under GDPR for data processors to disclose the country or countries where data is stored and processed? "Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject-matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor: ... (h) makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller. ..." -- EU General Data Protection Regulations (GDPR) Article 28 Paragraph 3(h) This clearly states the data processor must make available to the data controller all details required to demonstrate compliance. It's quite likely larger organisations may choose to make this simple for data controllers by supplying this information in the form of a completed Data Privacy Impact Analysis document. "Each controller and, where applicable, the controller's representative, shall maintain a record of processing activities under its responsibility. That record shall contain all of the following information: ... (e) where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and, in the case of transfers referred to in the second subparagraph of Article 49(1), the documentation of suitable safeguards; ..." -- EU General Data Protection Regulations (GDPR) Article 30 Paragraph 1(e) This clearly states the data controller must maintain a record of the country or countries involved if any of these are outside the EU, and so this information must be made available to the controller as stated above. | You don't need to get consent to comply with GDPR Lawfulness of processing Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Sending a http request to a website falls under 6(1)(f). | If a data controller fails to fulfil your data subject rights, lodge a complaint with your data protection authority. In Hamburg, the appropriate form is here. However, they are not required to investigate your complaint. Independently from a complaint, you could consider suing Wordpress for compliance – Automattic has a subsidiary in Ireland so this might actually be feasible. I'm not quite sure though that Automattic is indeed the data controller for wordpress.org, as opposed to the .com domain – the privacy policy isn't quite GDPR compliant. While your GDPR Art 17 Right to Erasure might not apply in this case, there's a definite GDPR violation because the data controller failed to respond to your request within a month as per Art 12(4). That your posts on the bugtracker were deleted doesn't look like an issue in this context, what does matter is that they didn't respond to emails to the addresses mentioned in their privacy policy. Whether you have a right to erasure depends on the legal basis for storing your data. In general, you have a right to erasure if: the data is no longer necessary; processing is based on consent (because you can always withdraw consent); or processing is based on a legitimate interest and they have no overriding legitimate grounds to continue processing despite your objection (Art 21). The data is still necessary to identify you for your actions on the bugtracker, but depending on your particular situation you may be able to object successfully and force them to anonymize your posts. | Companies House itself is exempt from certain GDPR provisions, including Article 17, by virtue of the Data Protection Act 2018, Schedule 2, Part 1, paragraph 5. (That's the Act which implements the GDPR in UK law.) The listed GDPR provisions do not apply to personal data consisting of information that the controller is obliged by an enactment to make available to the public, to the extent that the application of those provisions would prevent the controller from complying with that obligation. The list is in paragraph 1 of that Part, and has effect under section 15 of the Act. Because the registrar is obliged by an enactment, the Companies Act 2006, to make information available to the public, it's exempt from being asked not to. When Companies House data is processed by somebody else, they do not have this exemption. They are the "data controller" with respect to what they've retrieved (from the API or by scraping) and have freestanding obligations under the GDPR. They may still have other reasons why they are able to retain and process your data, such as a vital interest or a legitimate interest in protecting themselves or others from fraud, and therefore wanting to maintain a list of people associated with insolvent companies. For Article 17 specifically, there are exceptions relating to the public interest, statistics and research which might be invoked. But random websites cannot claim exemption from Article 17 just because the data comes from Companies House. There is nothing in the Companies Act which says that third parties are obliged to mirror Companies House data. This is explained in greater detail in the Companies House Personal Information Charter, which is where I found the citation above. They go on to say: If you have any concerns about company data on third party products and websites, please contact the organisation directly. We’re not able to advise other organisations on UK GDPR compliance, and we cannot advise you on whether other organisations are complying with the law. | The 'right to be forgotten', as currently being applied throughout the European Union (EU), does not come from the General Data Protection Regulation (GDPR), which will come into force 25 May 2018. Rather, the current basis exists in the Data Protection Directive, 95/46/EC, article 12(b): Right of access Member States shall guarantee every data subject the right to obtain from the controller: [...] (b) as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data; This was one of the main points upon which the Court of Justice of the European Union (CJEU) decided Google Spain v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, the judgement which allowed for individuals to ask for search engines to remove results containing personal data. The CJEU explained that the 'right to be forgotten' was not absolute and should take into account economic considerations as well as other rights (paragraphs 85 - 88). The GDPR, article 17, for purposes of contrast, has a more robust and explicit right of erasure than currently in force: Article 17 Right to erasure (‘right to be forgotten’) 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: [...] Shortened for clarity GDPR, article 17 fleshes out much of the lack of specifics that the Directive's article 12(b). It should be noted that the UK's Data Protection Act 1998 is a transposition of the Data Protection Directive. This means that the full effect of the rights and obligations in the Directive are contained within the Data Protection Act 1998. Furthermore, the interpretation of the rights and obligations of the Data Protection Directive by the CJEU are highly influential on interpretation of the Data Protection Act 1998. This is due to the European Communities Act 1972, s 3(2) which states: Judicial notice shall be taken of the Treaties, of the Official Journal of the Communities and of any decision of, or expression of opinion by, the European Court on any such question as aforesaid; and the Official Journal shall be admissible as evidence of any instrument or other act thereby communicated of any of the Communities or of any Community institution Even without the above provision, it would be extremely likely that British courts would take into account Google Spain, given that the foundation of the Data Protection Act 1998 is the Data Protection Directive. The most likely outcome is for British courts to uphold the interpretation in Google Spain and allow for data subjects to request removal from search engines. Of course, it is not entirely possible to know without a test case, but it is doubtful any major search engine would attempt to deviate from the current situation as there is currently legal certainty. The Data Protection Act 1998 will still be in force after the future Brexit agreement and is certainly not contingent on continued EU membership. Update The current DPA will be repealed when Brexit comes in to play and will be replaced by a new one. Read more about the new data protection bill on the ICOs web site, which is based on the GDPR with certain derogations and additions. | Think of a website that has gives no option for the users to delete what they have posted -but still the users can delete their account completely. That's easy - this is exactly how all StackExchange sites (including this one) work :-). See for example: How does deleting work? on meta.SE. Is it against the right to erasure mentioned here as a part of GDPR? No, it is not (otherwise StackExchange would be in rather big trouble). The "right to be forgotten" is subject to limitations. Most importantly, it only applies to personal data. Personal data is defined as (GDPR, art.4): any information relating to an identified or identifiable natural person (‘data subject’) If what you posted contains no personal information about you, it is not "relating to" you. The details are complicated (as usual, see e.g. The GDPR: What exactly is personal data?), but "personal data" is things about you (your name, your address, your sexual history, maybe even your IP address). On the other hand, if someone asks how to solve a programming problem, and you write an answer explaining what API to call, that answer is not personal data. In addition to that, even personal data may be retained if the data controller has a need to retain that information. This is also covered in article 4. For example, the controller may retain information "for the establishment, exercise or defence of legal claims" - otherwise you could buy something online without paying, and then ask the seller to forget about your purchases so they cannot collect the outstanding payment. So, in summary: A website will need to allow users to delete or hide personal data that they posted - such as their user profile information, or personal information in their posts. That does not mean they are allowed to delete entire posts - it is enough if personal information is redacted or anonymized. The website may be allowed to retain that information (hidden) if they can show legitimate interest - for example billing information, or posts that are the subject of a lawsuit. The StackExchange network, for example, covers this by allowing users to: disassociate posts from their account delete their account entirely (thus effectively disassociating all posts from personal information) asking a moderator for redaction of personal data |
How to store refusal of cookie consent If a user refuses cookies on a website, then how can that website store that refusal? As far as I can tell, the GDPR requires you to store both consent to and refusal of personal data storage. But it seems to me that there is a catch 22 here: they specifically refused the storage of their data, and now the website is supposed to store that somehow. How can you store that information in a compliant way? My initial thought is to use a cookie, but would that be non-compliant? They did just refuse the storage of cookies on their device... And if I store it in a database somewhere, how am I supposed to associate that refusal with that user if I can't store personal information? According to the accepted answer to this question, you can use a userId or some such. But first of all that is in the context of consenting, not refusing, to cookies; secondly, if that identifier is associated with a user, then by definition it is personal data (right?) and therefore storing that information would be non-compliant. Regarding the storage of consent, is it enough to store that in a cookie on the user's device or do you really need to store it in a database somewhere? That really seems superfluous to me. | The so-called 'cookie law' obliges you to inform the user about the site's cookies (or use of Storage or such on the user's computer) and ask for consent for those that are not "strictly necessary for the provision of an information society service requested by the subscriber or user". It does not require you to seek consent for the use of any cookie no matter what function it has. "Strictly necessary" cookies include those necessary for the website to comply with the law. Per guidance from the Information Commissioner's Office (ICO) in the UK (see the example box), a cookie set in relation to such consent or refusal is fine - it's for compliance with the cookie law. I would expect similar guides throughout the EU. You must consider its duration or lifespan: "For example, whilst it may be technically possible to set the duration of a cookie to “31/12/9999” this would not be regarded as proportionate in any circumstances." And consider including information about it in your cookie policy or such that users can find out more if they want. | No, they can't do that. GDPR Recital 42 states: Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment. Here's some more context on consent requirements. | The GDPR has a fairly broad concept of personal data: any information that relates to an identifiable person. This is far more than directly identifiable information! The concept 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. So indirectly linkable information can still be personal data. In your example, that ID can be easily re-identified with a particular person if you know who the secretary was between 2012 and 2014. It is quite likely that there are members in the club with this knowledge, or that this information can be gained from public sources like newspaper reports. Thus, you should assume that your member IDs are at most pseudonyms, but not anonymous. They are likely still personal data. However, it doesn't necessarily follow that you would have to erase everything. Art 17 comes with lots of caveats and exceptions. For example, if you are processing this personal data under a legitimate interest, and someone requests erasure, you might have overriding grounds to continue processing anyway. E.g. such a legitimate interest could involve security or auditability purposes. There might also be such a legitimate interest for keeping some history for the club, but there would have to be a decision based on the individual circumstances. Furthermore, you can of course retain data e.g. due to a legal obligation, or when this information is necessary for the establishment of or defence against legal claims. I understand your desire to keep some data around. Instead of asking “do I have to delete this?” it might be more productive to consider “under which legal basis can I keep this?”. I think you might have a legitimate interest, but you'd have to carry out a balancing test between the various interests and rights. A really problematic approach would be to hold on to de-identified data in the belief that it no longer were personal data. Such a belief is usually mistaken. True anonymization that meets the GDPR's definition is really hard, in particular because you would also have to prevent indirect identification, also by other actors than yourself. There are theoretical models that can help with anonymization, e.g. with k-anonymization methods you'd ensure that there are no unique records in the DB. But this can be tricky to apply correctly, so I'd recommend to only treat aggregate statistics as truly anonymous. In 2012, the ICO has published an anonymization code of practice (PDF). It is no longer up to date with the current legal environment (in particular since the GDPR has expanded the concept of identifiability), but it provides a good overview of both the difficulties of preventing re-identification and an overview of potential solutions. | How does GDPR work with insurers in relation to refusing information about pre-existing medical conditions? Due to it being special category data. As in, which of the "conditions for processing special category data" would apply? As far as I see, Article 9 (a) ("explicit consent") would apply. So the insurer would have to ask the customer for consent. My first thought was it would be consent-based (condition a), but under consent, it is noted that you should avoid making consent a precondition of service. Yes, that is often noted, but that is only partially true. The GDPR actually says (Article 7, emphasis mine): 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. So making consent a precondition of service can be ok, provided that the data is "necessary for the performance of that contract". Whether knowing about preexisting conditions is "necessary" for an insurance provider is something a court would have to decide, but on the face it does not seem unreasonable. Source: General Data Protection Regulation | Think of a website that has gives no option for the users to delete what they have posted -but still the users can delete their account completely. That's easy - this is exactly how all StackExchange sites (including this one) work :-). See for example: How does deleting work? on meta.SE. Is it against the right to erasure mentioned here as a part of GDPR? No, it is not (otherwise StackExchange would be in rather big trouble). The "right to be forgotten" is subject to limitations. Most importantly, it only applies to personal data. Personal data is defined as (GDPR, art.4): any information relating to an identified or identifiable natural person (‘data subject’) If what you posted contains no personal information about you, it is not "relating to" you. The details are complicated (as usual, see e.g. The GDPR: What exactly is personal data?), but "personal data" is things about you (your name, your address, your sexual history, maybe even your IP address). On the other hand, if someone asks how to solve a programming problem, and you write an answer explaining what API to call, that answer is not personal data. In addition to that, even personal data may be retained if the data controller has a need to retain that information. This is also covered in article 4. For example, the controller may retain information "for the establishment, exercise or defence of legal claims" - otherwise you could buy something online without paying, and then ask the seller to forget about your purchases so they cannot collect the outstanding payment. So, in summary: A website will need to allow users to delete or hide personal data that they posted - such as their user profile information, or personal information in their posts. That does not mean they are allowed to delete entire posts - it is enough if personal information is redacted or anonymized. The website may be allowed to retain that information (hidden) if they can show legitimate interest - for example billing information, or posts that are the subject of a lawsuit. The StackExchange network, for example, covers this by allowing users to: disassociate posts from their account delete their account entirely (thus effectively disassociating all posts from personal information) asking a moderator for redaction of personal data | Does GDPR apply if my web app stores personal data on the user's phone only? No. If you are not processing Personally Identifiable Information (PII) then the GDPR does not apply to you. This is what a web browser does when it asks to remember your username and password for this web site. You are providing a tool, the user is using that tool to process their own data. I do offer to back up the user's personal data At this point you are processing the users PII, and the GDPR does apply to you. Even though you do not have enough information to identify an individual, as it can be used with other information to identify an individual it is PII. From the ICO: Can we identify an individual indirectly from the information we have (together with other available information)? Even if you may need additional information to be able to identify someone, they may still be identifiable. That additional information may be information you already hold, or it may be information that you need to obtain from another source. When considering whether individuals can be identified, you may have to assess the means that could be used by an interested and sufficiently determined person. | The same page at the ICO website also lists what an organisation should do if they refuse to comply with a request: What should we do if we refuse to comply with a request? You must inform the individual without undue delay and within one month of receipt of the request. You should inform the individual about: the reasons you are not taking action; their right to make a complaint to the ICO or another supervisory authority; and their ability to seek to enforce this right through a judicial remedy. You should also provide this information if you request a reasonable fee or need additional information to identify the individual. Even if they did not inform you about this, the last two bullet points basically list your options. You can make a complaint (Art. 77 GDPR), or go to court (Art. 79 GDPR) requesting the online retailer to comply with your request. (Or do both). You can request a compensation for damages, but it is often difficult to prove if you have suffered (non-material) damages. | If the data controller has “reasonable doubts concerning the identity of the natural person making the request”, then “the controller may request the provision of additional information necessary to confirm the identity of the data subject” (Art 12(6) GDPR). Until the data subject provides this information, the request is paused. But what are reasonable doubts, and what additional information can the controller request? The GDPR itself provides no clear guidelines, though general principles apply – the additional information must be necessary, adequate, and proportionate for the identity conformation purpose. The controller's obligation to comply with access requests must be balanced with the controller's obligation to ensure the security of data by rejecting invalid requests. Just accepting any request without any verification would also be a breach of the GDPR. For example: If the company identifies data subjects by email address, then demonstrating control over the email address would be an appropriate verification step. But just mentioning the email address would not be enough since it could be someone else's email address. If the company provides a website where data subjects have created user accounts, then being able to log in to the account would be an appropriate verification step. In these examples, asking e.g. for government photo ID would not be appropriate because that doesn't help strengthen the link between the person making the request and the personal data being processed. Such data collection would be disproportionate and unnecessary. In contrast, if you walk into a bank and ask for a copy of your data, it would be entirely appropriate for them to ask for government ID because (a) the higher general risks warrant stronger checks, and (b) such ID will help confirm that the person making the request is indeed the proper account holder. The bank will also have been legally required to request ID when the account was originally opened, so that asking for ID as an identity verification measure during this later request won't involve collection of more data than they already have. (These examples were made up by me and are not official, but read on.) The EDPB has issued draft guidelines on the right of access 01/2022, which also discuss the issue of additional information for identity verification in sections 3.2 and 3.3. In particular, paragraphs 73-78 talk about IDs: 73. It should be emphasised that using a copy of an identity document as a part of the authentication process creates a risk for the security of personal data and may lead to unauthorised or unlawful processing, and as such it should be considered inappropriate, unless it is strictly necessary, suitable, and in line with national law. […] it is also important to note that identification by means of an identity card does not necessarily help in the online context (e.g. with the use of pseudonyms) […]. 75. In any case, information on the ID that is not necessary for confirming the identity of the data subject, […] may be blackened or hidden by the data subject before submitting it to the controller, except where national legislation requires a full unredacted copy of the identity card (see para. 77 below). […] 76. […] Example: The user Ms. Y has created an account in the online store, providing her e-mail and username. Subsequently, the account owner asks the controller for information whether it processes their personal data, and if so, asks for access to them within the scope indicated in Art. 15. The controller requests the ID of the person making request to confirm her identity. The controller's action in this case is disproportionate and leads to unnecessary data collection. […] Example: A bank customer, Mr. Y,, plans to get a consumer credit. For this purpose, Mr. Y goes to a bank branch to obtain information, including his personal data, necessary for the assessment of his creditworthiness. To verify the data subject’s identity, the consultant asks for notarised certification of his identity to be able to provide him with the required information. The controller should not require notarised confirmation of identity, unless it is strictly necessary, suitable and in line with the national law […]. Such practice exposes the requesting persons to additional costs and imposes an excessive burden on the data subjects, hampering the exercise of their right of access. 77. Without prejudice to the above general principles, under certain circumstances, verification on the basis of an ID may be a justified and proportionate measure, for example for entities processing special categories of personal data or undertaking data processing which may pose a risk for data subject (e.g. medical or health information). However, at the same time, it should be borne in mind that certain national provisions provide for restrictions on the processing of data contained in public documents, including documents confirming the identity of a person (also on the basis of Art. 87 GDPR). Restrictions on the processing of data from these documents may relate in particular to the scanning or photocopying of ID cards or processing of official personal identification numbers. To summarize: controllers can request IDs only in comparatively niche scenarios, and must then take additional safeguards to protect the sensitive document (e.g. instructing the data subject to redact parts of the ID, not making copies, and immediately deleting the ID after successful verification). A lot here comes down to national laws, which may explicitly require or forbid use of the ID in this context. The EDPB guidelines are not binding or normative, especially since this guidance is still in the public consultation phase. However, the guidelines present an overall consensus of the national data protection authorities in the EU, and the guidelines are regularly cited by courts. In practice, many controllers do ask for disproportionate amounts of data. Sometimes this seems to be an attempt to discourage data subject requests, which would clearly be non-compliant. In some cases, this is due to a narrow interpretation of “reasonable doubts” in which they try to eliminate any doubt about the identity. If the data subject and data controller cannot agree on a suitable identity verification process, then the data subject can: Art 77: lodge a complaint with a data protection authority, and/or Art 79: sue the data controller in court, both for compliance (fulfilling the request) and for compensation (if damages were suffered). It is worth noting that the data controller is responsible for being able to demonstrate compliance (Art 5(2) accountability principle), such as demonstrating the apparent reasonable doubts to a supervisory authority or to a court. When the controller requests ID, the controller has the burden of proof to show that this is compliant. |
Is it possible for a contract to refuse a contract award Suppose you have this scenario: Company AA is an automotive manufacturer that needs to upgrade the IT system that lasted for 10 years. It asked the same supplier of old IT system to provide a feasibility study on how the system could be improved in terms of speed and efficiency. Company AA recevied a report that the system can be upgraded. Then, Company AA issued a formal invitation to tender for the work involved on the basis of Company AA 'Standard Terms for IT Services'. The supplier produced a tender with detailed information like cost and duration, however the tender made several modifications to Company's standard contract terms for IT services. Then, A formal notification of contract award was issued by company AA to the contractor, but ignored the Clauses modifications and included a reference to the original standard terms of contract for IT services. The contractor did not agree with the original terms, so refused the contract award. Is the contractor obligated to start working on the project as they have reached the contract award stage. In other words, is there any legal obligations or can a contract award can be resufed if the contactor did not agree on terms ? P.S following common law in US & UK | There is no contract One of the requirements for a contract to exist is agreement between the parties - there is no agreement here. Here is what happened: AA asked for IT to make an offer subject to standard terms. IT made an offer subject to different terms. AA rejected IT's offer and made a counter-offer on the original terms. IT rejected the counter-offer. Since no one has accepted any offer, there is no agreement and no contract. Also, the rejection of an offer (by counter-offer or directly) kills the offer so, right now, there are no live offers that could be accepted to form a contract, for example, AA cannot now accept IT’s original offer. | As I understand it you are responsible for removing the stump and replacing the tree. The fact that a particular method was agreed (and failed) doesn’t relieve you of that responsibility. If a contract doesn’t specify a time for fulfilling an obligation then it must be done within a reasonable time. That is, a time that is reasonable in the particular circumstances. You suggested a time of April/May - it is now November and is probably beyond a reasonable time. By not stating a year, a reasonable interpretation is that you meant this year i.e. 2018. It would appear that you are in breach of your agreement and the other party can take whatever action the agreement contemplates. | The advertisement is simply an invitation to treat. The lease was the contract offer, and your signature and payment were acceptance of that offer. The advertisement doesn't bind either party (other than as prohibited by deceptive advertising statutes), and you are allowed to negotiate an offer that differs from the invitation to treat. | For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle. | Written Contract If there was a written contract, the fact that it wasn't signed is not relevant. While a signature is evidence of agreement with the terms there are other ways that acceptance can be indicated: like you paying them $600. Wrong Information Where the error is fundamental to the performance - e.g. you needed shipment to Alaska and they were offering shipment to Alabama, the contract would be void ab initio. That is, it never happened and everyone needs to be returned to their original positions as far as possible. However, in general, an error by one or the other party in their understanding of what was agreed does not invalidate the contract. For example, if you told them it was a "small" dog because it was small for a Great Dane but under an objective classification, it is, in fact, a "large" dog the contract must be completed and either you or they wear the additional cost of doing so. Whether they are entitled to ask for additional payment "due to some wrong information" depends on who took the risk under the contract for its correctness? Barring a specific term, the risk usually lies with the party that provided the "wrong information" but some contract will assign the risk for one party's errors to the other party - subject to a requirement to act in good faith. If they are not entitled to additional payment, they have to perform the contract for the original fee. If they are entitled, then you have to pay a reasonable price increase - you are not generally entitled to cancel. All of this turns on the specific terms of the contract and the exact nature of the "wrong information". Consumer Protection Law CPL in your state or their state or both will almost certainly have something to say about this beyond common law rules of contract. | if a manager emailed an prospective employee a contract containing the pay rate of $20/hr, if the prospective employee crossed out $20/hr and replaced it with $25/hr, then went to work and gave the manager the contract which he failed to carefully read, continued working for a few months, would the employee be entitled to $20/hr? A party ought to timely alert or notify the other counterparty about any disagreements or proposed changes. This is especially recommendable when evidence suggests that the counterparty's expectation that the party only would sign the contract was reasonable. In the example you outline, the employee's unilateral alteration of the compensation/rate in the contract seems unlikely to favor the employee's position. That is because typically employer and employee negotiate compensation prior to formalizing their agreement. In that case, the employee would need stronger evidence with which to overcome the employer's credible argument that he did not knowingly accept the altered rate. | could I claim that my product must be added asap? And is it reasonable to ask for compensation for the missed revenue due to pushing back the launch? Unfortunately, no. Your description reflects that you consciously treated as sufficient the limited knowledge you had at the formation of the contract. See Restatement (Second) of Contracts at §154(b). There is no indication that (1) at the formation of the contract the company committed to a more specific timing, or (2) you would have declined the invitation had you known at the formation of the contract that the company would keep postponing the inclusion of your product in the way you describe. You were given the expected date only after you performed your duties pursuant to the contract, which defeats the notion that the company's timing was any relevant to your decision of entering the contract. The only way you could prevail is by proving that the company breached the covenant of good faith and fair dealing that is implied in all contracts. See Restatement at §205. Other than that, the lack of contract provisions to protect your interests give the company significant discretion. | Contracts do not have to be written and signed on pieces of paper, except in a few cases specified by law. Writing style (ordinary style of talking vs. high-register formulaic language) does not affect the validity or a writing in contract law. You do have something in writing. What matters most is what he actually said (exact words, not your belief of what it must have meant), and how it relates to any existing contractual obligation. For example if the message says "You're fired, turn your badge in at the desk. I'll think about giving you two weeks pay", that's not an enforceable promise. But your existing contract might say "You get 2 weeks severance pay when we fire you", and that can't be walked by by saying "I'll thinking about it". And it also depends on whether there are any laws mandating severance pay (but California does not have any mandatory severance pay law). |
What legal precedent exists for states blocking their governors extended stay at home orders? Several states now have had their extended Sam home orders challenged by lower courts, before they were advanced to their state supreme courts. What constitutes this? I would assume that during any kind of emergency, certain actions have to be taken, but maybe because there’s little find typic evidence, this is more of a political and legal gambling game that we are playing with the virus. I mean, yes, the stay at home order can’t go on forever, for a eventually has to be lifted at some point, but I think that the way it’s being addressed is based on politics, instead of science. | The law does not require any reference to science of any kind – that is a political choice. The law grant a certain authority to the governor, under certain circumstances, go give extraordinary orders at the governor's discretion. No actions are mandatory during an emergency. The laws may or may not require legislative approval for extending an order beyond a certain point, where the order is issue pursuant to declaring a state of emergency. There are two main bases for appealing to the courts to enjoin against some aspect of an order: lack of initial authority (the statute does not actually grant that power), or, violation of fundamental constitutional rights. The latter is the predominant basis for appeal in the present instances. | Under Fed. R. Civ. P. One can be served according to the state law or: (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized None of those would apply to your facts. Thus you would have to find some jurisdiction that would allow service of process under your fact. I dare say that none will and that due process would come into play. In NJ, due process applies and service may be made (1) Upon a competent individual of the age of 14 or over, by delivering a copy of the summons and complaint to the individual personally, or by leaving a copy thereof at the individual's dwelling place or usual place of abode with a competent member of the household of the age of 14 or over then residing therein, or by delivering a copy thereof to a person authorized by appointment or by law to receive service of process on the individual's behalf; It has to be the current place of abode. | These situations do come up (and incidentally, this is nothing new, it has been a difficult and recurring legal issue since at least the 18th century), and they really suck to be in, and often there aren't easy answers. There are a lot of legal doctrines out there that are designed to avoid a hard clash of conflicting court orders and to prevent someone from suffering contempt of court sanctions when they are in this bind. Generally, litigants caught in this bind look for these outs. For example, when particular property or records are at issue, often the person in question will "interplead" the property placing it in the jurisdiction of a court to resolve and out of their hands. There is a doctrine called in custodia legis which provides that once something is in the custody of a court that another court may not exercise jurisdiction over it. The entire sub-field of civil procedure pertaining to jurisdiction and venue is designed to avoid these conflicts. U.S. law has a whole sub-field a statutes and legal doctrines like the Rooker-Feldman doctrine designed to prevent these conflicts from coming up when they arise between federal and state courts. One of the most important legal doctrines is that a person cannot be punished for contempt of court for failing to do something that the person being held in contempt of court does not have the ability to do. One argument, which doesn't always work, is that once you are subject to a legally binding court order that has been served upon you that you may not legally defy that court order in order to follow the order of a court which cannot override the decisions of the court issuing the first order. Usually, contempt citations are directed at individual employees or agents rather than at entities. For example, in a dispute over Indian Trust Funds against the United States government, contempt citations were brought against the Secretary of Interior personally and could have sent that individual to jail for not complying. One way the an individual can get out of the order relating to an employment or professional duty is to resign from office and thus deprive oneself of the ability to perform the order. But, the short answer is that there is no one simple legal rule for resolving these situations, and the litigants stuck in these situations look for every available legal argument to resolve it until it is resolved. | The state has wide discretion on what to require that a school teach to children, particularly in the K-12 grade range. There is little case law where a parent or private school has challenged such requirements. However, for a state to forbid that certain things be taught would probably run into a first amendment problem, because the school has free speech rights. In addition, if the school is a religious one, forbidding teaching its dogmas and views might also impact the free exercise clause. Note that a state need not permit homeschooling at all, and some states do not. When a state requires that a school teach something that it disagrees with, it can often follow a line such as "Many people think X {Standard state supported concept} but we believe Y instead. Then it has taught X, but not endorsed it. Some religious schools have handles the teaching of evolution in this sort of way. If a state mandated teaching matters of opinion as fact, such as "CARTER WAS THE MOST HANDSOME president EVER" there might well be a challenge, and I am not at all sure how it would be resolved. | Governments have a significant interest in controlling pathogens and preventing outbreaks: they are dangerous to dense & unimmunized populations. Can a government legally prevent me from intentionally infecting myself with a virus? Yes, governments have the broad authority to enact laws. The US prohibits and regulates pathogen experimentation (self-infection). There are also rules regarding shipping and export (ITAR). Furthermore, in the US, there are (FL, NY state) laws that prevent patients from being tested unless the order is given by an authorized health care professional. Hopefully, you do live in a state that does not have this regulation (AZ). While I do believe in one's right to do as one sees fit with one's own body, there is the counter-argument: there must be limits when it comes to unnecessarily exposing the community to pathogen risk. I hope that this question is theoretical and that nobody actually believes the immunity supposition without a credible peer-reviewed scientific publication. Unfortunately we live in an age where misinformation is propagated at novel speed and scale. I wish the OP well. That being said, I have concerns regarding the underlying assumptions of the question. While I am comfortable with the OP question, the underlying assumptions give me great pause. UPDATE IMHO: I hope that no reader will seriously consider amateur experimentation in self-infection in the hope of conferring immunity. Giving a pathogen uncontrolled safe-haven to propagate and possibly infect others seems irresponsible. I doubt that the government cares if any individual manages to puts themselves in an early grave, however, it does care if amateurs create an unnecessary pandemic risk. I would think that any government would view pathogen experimentation much like nuclear device experimentation, because of the mass casualty risk. I hope that readers understand the implications of an amateur uncontrolled experiment. | The Queen (or King) is not the government; she represents the State. The difference is often ignored by ministers, but is important particularly in constitutional cases. Miller began as Miller v Home Office, a judicial review case. When it became clear that the question was what powers the government actually had in a certain situation, the Supreme Court decided that constitutional points should be argued by, effectively, an amicus curiae on behalf of the state, with government lawyers defending their own viewpoint (and other interested parties intervening). This made it, in their view, a case of the state versus the government, with 'Miller' being either an acknowledgement that the applicant remained a party or a means of distinguishing this case from all the other "R. -v- Government" cases over the years, depending on your point of view. | The future prospects are negligible, and the present status of such influence is non-existent. In a few cases, you may find an appellate decision citing some statement from a reputable law review. Here is an article that addresses such influences on SCOTUS (which, the authors note, have decreased over time). However, you are describing a wingnut legal theory, and courts do not rely on wingnut legal theories, they rely on what the actual law is. | An individual does not have authority to "issue" a restraining order. In the U.S. only judges can issue such orders. The guidelines and policies for obtaining a restraining order vary by jurisdiction, although in the end a judge can issue any order he wants. So in theory you might be able to find a judge who will issue an order for any or no reason. In practice I'd be surprised if many judges would abuse their office to gratuitously harass people in this fashion, though there are probably a few amusing/disturbing examples out there to the contrary. |
Is usage of a still frame from a video considered a derivative work/adaptation? Let's say that Alice makes a video and releases it under the CC-BY-ND license. Bob now wants to use a still frame from the video in his work (maybe to showcase or aggregate thumbnails of Creative Commons videos). Multiple places on the Creative Commons website, including the license deed for CC-BY-ND and their FAQ, emphasize that: Merely changing the format never creates a derivative. and All CC licenses allow the user to exercise the rights permitted under the license in any format or medium. This suggests that changing a MP4 file to, say, an AVI file is not considered an adaptation. However, taking a still frame from a video seems a bit unclear. On one hand, it could be interpreted as "converting" the file from one format to another (for example from MP4 to GIF) and it would not be an adaptation. On the other hand, the use could be considered "transformative" and therefore a derivative work since Bob chose a still frame that represented the whole video (or another way to think of it is that he "cropped" all the other frames of the video out and therefore modified the video, which would then make it a derivative work). Here are my questions: Is Bob's usage considered a derivative work under US copyright law? Is Bob's usage considered an "adaptation" under the CC-BY-ND license? If it makes any difference, let's say that Alice has licensed her work under the 4.0 version of the license. | 1. Is Bob's usage considered a derivative work under US copyright law? Possibly. Under US law, a derivative work is: … a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. Lee v. A.R.T. Co. - 125 F.3d 580 (7th Cir. 1997) is on point here. There the court held that originality was essential to a derivative work. The selection of a particular frame out of the many available is an editorial choice that possibly meets the threshold for originality and is, therefore, a derivative work. Or it isn't and it is merely an abridged reproduction of the original. It depends on the facts. These include how much editorial originality the selection of the particular frame requires (e.g. the choice of a single frame from a highly dynamic video like a fight sequence requires more originality than the choice of a frame from a pan across a static landscape) and the circumstances surrounding its use. 2. Is Bob's usage considered an "adaptation" under the CC-BY-ND license? Maybe. If it’s a derivative work under applicable work then it is ipso facto an adaptation because that’s how the licence defines adaptation. If it isn't, then it isn't. | 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. | Photographs of objects other than flat artworks, including pretty much all the things you list except in some cases oil paintings, involve creativity and originality in composition, positioning, lighting, and other aspects, and each such photo would be copyrighted by the photographer (or the photographer's employer in a work-made-for-hire situation). Such photos (or copies of them) could be sold if the copyright owner chooses to, just like any copyrighted work. If the object being photographed is itself a work of art, and if it is recent enough that it is still under copyright protection (See this chart for US rules on copyright terms), then the photo would be a derivative work, and the permission of the copyright holder on the original would in theory be required. But such a requirement could only be enforced by the copyright holder on the original work filing suit, and if the work is not clearly identifiable this might not be likely. If the photographer knows the name of the original artist, and the work seems likely to be still in copyright, an attempt to secure permission would be at least good practice, and quite possibly legally essential. For a flat (2D) work of art, such as a painting, if the photo attempts to reproduce the original exactly (a "slavish copy" ), then under the Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) decision, the photo will not be original and so will not be protected by copyright. See this question and its answers for more on Bridgeman A photo of a painting on a stand, showing the painting and its frame, and not trying to just reproduce the painting exactly, will not fall under the Bridgeman rule. This answer is quite US-oriented. Much of it will apply in any country which adheres to the Berne Copyright Convention but the details may vary, and if a different jurisdiction is intended, that should be stated. | No, it does not fall under fair use: It is commercial use in nature It is a copyrighted work It is hard to say what portion of the copyrighted work you'd be using based on your description, so test three is inconclusive It could be argued in your favor that the infringement would not have an impact on their potential market, but it could potentially impact the value If discovered the owner of the copyright could pursue action against the company you work for. | There is no such law; copyright secures exclusive rights for the copyright holder (and related rights sometimes secure certain rights for the author which cannot be sold or given away except through death), but it cannot be used to force them to spend money to distribute it in a form that you can conveniently use. Such a rule would defeat the purpose of copyright law, which is to give the copyright holder control over the use of the work, not take away their ability to do so. You can certainly request that they release the work, and can offer to pay them for doing so. But someone who does not own the copyright or any related rights cannot use copyright law to force the person who does own the copyright to spend their own money to convert a show into a new format. | Generally, as the copyright holder, you can grant anyone a license to any or all of the copyright rights you have over your work (copying, distribution, derivative works, etc.). If you want to articulate unambiguously exactly what rights you are licensing, and optionally require attribution, you could use one of the Creative Commons licenses, which are designed for creative works. Some that would likely be a good fit for you are: Creative Commons Attribution license (CC BY) - Grants full rights to any recipient to use, modify, and distribute. Requires that all reuse mentions you somewhere in the work's credits. Creative Commons Attribution-ShareAlike license (CC BY-SA) - Grants the same full rights as the CC BY license except that any new derivative work made by a recipient must also be licensed under the CC BY-SA license. With the CC BY license, another person's modifications could be under a different license; under CC BY-SA, all modifications must be licensed under CC BY-SA when distributed, so the work and all its future transformations must be shared under the CC BY-SA license, forever (until your copyright expires, of course). This falls under the broad umbrella of copyleft licenses. CC0 - Functionally places your work in the public domain where it can be used by anyone with no restrictions (other than moral rights). CC0 allows you to renounce all claim to copyright on your work (to whatever extent possible in your jurisdiction), and/or freely license all the rights you hold in your work to the maximum extent possible (for jurisdictions where renouncing your copyright is not possible). There are also Creative Commons licenses that disallow commercial use and disallow the creation of derivative works, but you are probably not interested in those, since you want to grant full rights. One other factor to consider is whether you want to license the musical work itself or only the sound recording. By default, you might only be licensing the recording, which means other people cannot record a new cover of your music. (See Does a Creative Commons license allow me to record a cover of a song recording?) If you want to allow that, simply make a separate declaration when you license the work, saying something like, "In addition to the sound recording(s), I also license the underlying musical work under identical terms, to allow recipients to record their own covers based on this song." | Well, actually, fair use is maximally relevant. Copyright means, put simply, DO NOT COPY. Citing or not is irrelevant (plagiarism is a whole other non-legal kettle of fish). Technically, what you describe is violation of copyright. However, under section 107 of Title 17 (the copyright law), you could attempt to defend yourself against an infringement suit on the basis that your action was "fair use". See this LSE q&a for the essentials of fair use. | This case did not find that Two Live Crew's version was fair use. Rather it held that it could be fair use, contrary to the lower court ruling that its commercial nature precluded a fair use defense based on parody. The court remanded the case to be considered in light of its holding. The two parties settled without getting a final decision on fair use. It was never really contested that this work was parody. The issue was whether the commercial nature rendered it unfair. The Supreme Court told the lower courts to assess the taking under the full four-factor fair use analysis and that commercial use doesn't automatically make a parody unfair. One source of confusion is that you seem to be conflating parody and fair use. Parody is just one purpose (along with criticism, education, and others) that has been generally held to swing the balance in favour of fair use. Last, the "five word plagiarism rule" is not a legal standard. |
Inheriting an HOA When a person with a house under a home owners association dies must the heir or executor agree to the HOA to get or sell the house? I'm most interested in WA state USA, but am curious about any general rule or exceptions. | Yes. An HOA covenant binds successors to the owners who make the HOA declarations and establish the relevant covenants. Generally, there is a process in the HOA rules by which a supermajority of owners can disband the HOA, but otherwise HOA rules automatically bind successor owners, whether they agree or not. Fines imposed by an HOA member by an HOA normally only bind a successor owner if the fines have been recorded as HOA liens against the property. | If the parents own the house (as shown on the official deed) it will go as they leave it in their wills, or as the local law for intestate inheritance (no will) directs. Who paid all or part of the down payment will not matter. If the intent was for that to matter, then the child who provided the down payment should have been listed as partial owner, or some written agreement should have been made specifying the rights involved. Otherwise the down payment would be considered as a gift. If the child owns the house (as shown on the deed) it would not be part of the parents' estate, and their will(s) would not affect it. It would remain the property of the child. If the down payment was a loan rather than a gift, as shown by a written agreement of some sort, then that debt would be an obligation of the estate, to be paid before any legacies were distributed. | It’s your house You can’t be forced by a co-owner to pay rent for a property you own. You can’t be forced by a co-owner to sell if you don’t want to. You can’t be forced by a co-owner to pay to maintain the property.or to pay utilities. Of course, if no one maintains the property or pays the rates then eventually you won’t have a property but you can’t be forced to. This applies to her as much as it applies to you. It’s possible, even likely, that your mediation agreement meets the requirements of a contract. If it does, then breaching it will allow the aggrieved party to sue for damages. The good news is, you can get on with your life right now - sign over the house to your sister and walk away. Except you can’t because your interest in the house needs to be dealt with in the divorce. If you want your “fair share” and your idea of what that is is bigger than hers then you have to fight for it - lawyer up. | on behalf means that the party of the agreement is the landlord, not the property manager. The contract both entitles and obliges the landlord, not the property manager. The property manager is not a party of the contract. So the fact that the property manager is fired completely unrelated to the existing contract. Additionally, in most jurisdictions that I know of, even if the property changed ownership (the landlord sold or gifted it, or the landlord died and it was inherited by someone) the contract would still be in force, as the change of situations would not invalidated the rights and obligations of the other parties. | This may be true of the Nooksack tribe, in a sense. There is a category of Indian land known as trust land, which is held in trust by the US Government for the benefit of a tribe (there is also land that is just plain owned by the tribe). A tribe can thus set rules regarding use of the land that they control, which could mean that nobody can live in a particular place (not uncommon). The tribe could rent out land, and the rental agreement could contain a tribal membership clause. This complaint by the Nooksack Indian Housing Authority alleges that defendant is not a member of the tribe, and that the rental agreement requires defendant to be an enrolled member of the tribe. Defendant was disenrolled, and the eviction action followed. Non-member evictions are not the most popular actions that a tribe undertakes, so finding those rules online is not going to be easy. | Yes. It is fairly common for there to be one owner at law, but another person who has a beneficial interest - such as a long-term cohabiting partner. This may arise because the parties set it up that way, or perhaps more often when courts find that there is a "constructive trust" or a "resulting trust". See for example the concurring opinion of Lord Hope of Craighead in Stack v Dowden [2007] UKHL 17, Parties are, of course, free to enter into whatever bargain they wish and, so long as it is clearly expressed and can be proved, the court will give effect to it. But for the rest the state of the legal title will determine the right starting point. The onus is then on the party who contends that the beneficial interests are divided between them otherwise than as the title shows to demonstrate this on the facts. The resulting court process may find that the beneficial interest exists, or not, and what fraction of the property it represents. It's common to find situations where one party put up most or all of the whole purchase price of a house, which was then registered in both names, and they then disagree about whether it should be split 50-50 or otherwise - that's an example of the beneficial ownership differing in proportion from the (equal) legal ownership. (See Jones v Kernott [2011] UKSC 53 at paragraph 51 for an explanation of this particular pattern.) The same sort of case arises when a cohabiting partner does not own the house, but still contributes to the mortgage and other bills - then, depending on the facts at hand, there may be a "constructive trust", and the partner is entitled to a share of the sale price of the house even though they are not its legal owner. A "resulting trust" might arise when someone contributed money for the purchase of the property, even though they didn't end up as a registered owner, but the parties acted in other respects as if they were joint owners. | I am sorry for your loss, and that you have to deal with bills on top of everything else. The quick answer is yes, you might have to sell the house to pay your mother's bills. As you probably know, the estate includes both your mother's assets (cash, house, car, and so on) and her debts. In general, to "settle the estate," the executor must pay all debts before she gives away any of the assets. Legal Aid of West Virginia has a helpful website about West Virginia probate law. Here is what it says about this issue: If you can’t pay all of your family member’s creditors from the person’s available money, you must sell off the family member’s property and pay the creditors in the order listed in W. Va. Code § 44-2-21; W. Va. Code §§ 44-1-18 to -20. You may have to sell the family member’s land or home in order to pay creditors. W. Va. Code § 44-8-7. Added after comments Under WV law, it does not matter that you were bequeathed your mother’s house. The law gives debtors priority over heirs. This means debtors are paid before any heir. Heirs are “paid” from whatever is left in the estate after the debts are paid. So if the estate is underwater, if it owes more than it is worth, there will be nothing left in the estate to give to the heirs. As executor, your job is to carry out West Virginia law. The nuts and bolts of what happens if you refuse to the sell the house depends on WV law. You might be able to find the details by searching on line, but your best bet is to probably to talk to an attorney who specializes in WV probate law. An attorney will know both the law on the books, and how that law is implemented. They will be able to advise you on what options you really have, and the costs and benefits of those options. If the estate is underwater, you could buy the house from the estate. If you do that, you will not be liable for any of your mother’s debts; those are owed by the estate. Depending on how the sale is handled, this may be your (financially) best option. (Depending on whether the price covers the debt, and on what other heirs are bequeathed, the court might worry about you selling yourself the house at a discount price, and thus look at the sale very carefully.) | 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. |
Under what law, can the U.S. forbid other countries and companies from selling products to Huawei? Under what law, can the U.S. forbid other countries and companies from selling products to Huawei? https://www.wsj.com/articles/huawei-warns-u-s-chip-ban-will-damage-operations-globally-11589801706 Under what jurisdiction or law, is the U.S. permitted to do a blanket ban on a Chinese product without going through some kind of legal process with a legal body? In my knowledge, the U.S. jurisdiction should have no power on what TSMC should be able to sell to Huawei, and yet the U.S. is somehow exercising power over TSMC it seems. How does that work? | The original order was recently extended: that order relied on the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), the National Emergencies Act (50 U.S.C. 1601 et seq.), and section 301 of title 3, U.S Code. The order does not specifically mention Huawei, but the inclusion of Huawei is a result of determinations by the Secretary of Commerce (Secretary), in consultation with the Secretary of the Treasury, the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the United States Trade Representative, the Director of National Intelligence, the Administrator of General Services, the Chairman of the Federal Communications Commission, and, as appropriate, the heads of other executive departments and agencies This is analogous to orders to not trade with Iran. If business X has absolutely no connection to the US, then an order for X to not do business with some other entity is effectively unenforceable. However, TSMC does do business in the US, for example is is listed on the NYSE, and it does business with many US companies. Jurisdiction exists when a government claims jurisdiction. Enforcement exists where a government can force its will on others, the US can’t enforce its will on China or Huawei but it can on companies operating or based in the US. | You can either sue the company in the US, or in the Philippines. It would be easier for you to sue in the Philippines, but easier to collect if the trial is in the US. You need to hire a lawyer and provide more details. In both countries, it is illegal to refuse to pay an employee for work done, but it is not clear from your description that you were legally employees (this could be a breech of contract case). The Fair Labor Standards Act (which requires employees to be paid) may be applicable to the company: although there is a "foreign exemption" for word done overseas, this seems to relate to minimum wage, overtime and child labor, and not the basic obligation to pay wages. | The 9th Circuit decision actually held that the challenged regulations constitute a prior restraint on speech that offends the First Amendment which is not the same as saying that computer software is speech. A crucial differentiation is that by prohibiting talking about the technology, the regulations imposed a "prepublication licensing scheme that burdens scientific expression", which distinguishes the TikTok case from talking about cryptography. The regulations burden business transactions, which have for a long time not been protected by strict scrutiny. The first hill one would have to climb would be showing that there is a real First Amendment issue. There is no First Amendment right for the Chinese government to spy on Americans. The second issue is whether narrow tailoring means that if someone can come up with an alternative to an outright ban, then the regulation is not narrowly-enough tailored. We may eventually get a clearer guideline on that, since state governments have imposed very many restrictions on constitutional liberties, in order to prevent the spread of covid, when a less restrictive action would be warning people that this is a dangerous disease. Many restrictions have survived strict scrutiny because they were believed to be necessary to achieve that governmental end. The executive order identifies the compelling government interest: TikTok automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories. This data collection threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage. In light of that, it is hard to see that a warning notice would be effective in the face of this threat. Seizing the company and its IP and handing it over to Microsoft would be a less restrictive measure that would probably be as effective and would be protective of the First Amendment rights of teenagers, but it would also be somewhat outside the scope of current US law, so it isn't an actual alternative. I conclude that the ban is the least restrictive effective response to the threat. But it is not entirely clear what the constitutional rules are regarding effectiveness of alternatives (does 20% less restrictive compel a 10% less effective solution?). | Registered Trade Marks aren't the only form of trade mark protection. You also have the law of unregistered trade marks. Basically (and this is an over-simplification), it works like this: a business starts using a trade mark for a specified product: beard comb. Let's say that they don't even register a trade mark. they start selling load and loads (thinks 100s of thousands of $ or £ worth) they become well-known in that market segment. They accrue "goodwill" in the (unregistered) trade mark. That trade mark is protectable in law. That's a summary of the law of passing off aka the law of unregistered trade marks. So, if the new manufacturer is still manufacturing them in the country that you want to sell them in, you'll probably have a problem. This assumes that that country has an equivalent of the law of passing off. The tip then has to be - check to see if the manufacturer is still selling them. If you think it's a good business opportunity and worth a small amount of risk capital - a few hundred $ or £, file the trade mark application is see if anyone does anything about it. You can always withdraw it and avoid a dispute. You might also do a search for registered design rights. They protect the shape of the products (not what it's called - which is what a trade mark does). | Does (Customer) have any claim or recourse against (Store)? No. The store's conduct altogether preempts a finding of unconscionable tactics. The store's conduct would not be found in violation of Oregon's Unfair Trade Practices Act (UTPA). See ORS 646.605(9) et seq. (I am not verifying the multitude of cross-references in the UTPA, but the language of explicit items gives a general idea of what types of conduct the statute sanctions) The store's decision to decline orders, preorders or money for the product impliedly alerts customers not to grow premature expectations on acquiring the product. Also the store's disclaimer of out of stock weakens a customer's possible allegation that customer relied on a promise of availability of the product. Accordingly, the store prevents a customer from credibly arguing that he incurred losses as a result of the store's conduct. Does it matter if (Product) was available in other stores or just never produced at all? Does it matter if other stores have (Product) but charge more than $N? No. The fact that the store [unsuccessfully] attempted to get stock indicates that the shortage --and hence the failure to supply the product-- is not willful. This implies that the matter is not actionable even if the customer "suffered an ascertainable loss of money or property". See ORS 646.605(10) and .638. That being said, it is noteworthy 646.683(8)(a) lowers the requirement of willfulness [of violation] to one of recklessness in the context of class actions. | There is no international patent. Each country protects IP under its own national laws and registration system. However, there is the Patent Cooperation Treaty, which makes it easier to start the process in each of the countries that you eventually wish to patent an invention. A typical route would be to file an application under the PCT, and then pursue national patent applications in each country that you plan to exploit your invention. | To answer the last part of the question: Jurisdiction would be where the copied media is being producted and where it is being consumed/sold. Moving media from one jurisdiction with ineffectual protections to another jurisdiction is part of product piracy. The scheme you suggest might shield the company producing the counterfeit goods, leaving the importers holding the bag. If the importers and manufacturers are controlled by the same person, courts in jurisdictions with strong protection might hold that person liable for the whole criminal enterprise. There is a widespread assumption that the internet is 'beyond national laws.' That is wrong. Enforcement may be difficult in some cases, but the laws apply. If you try to make profits by skirting the edges of law, you need really good, really professional legal advice. | In the Netherlands, this qualifies as a deceptive trade practice (misleidende handelspraktijk) and is therefore directly illegal. It's likely also an unfair trade practice, (oneerlijke handelspraktijk) as the claim appears intended for end consumers. This means that the seller cannot count on the consumer knowing anythong about stuffase. It is a dutch implementation of EU directive 2005/29/EG, so similar laws apply in other EU countries. But the illegal per se part might vary. |
Neighborly liability? My wife and I have been building a playhouse for our kids on the backyard. Our neighbor keeps telling my wife that we must put up a fence and/or get lots of insurance because if her son gets hurt in our playhouse, we're liable. My question: if we don't invite her son into our yard/playhouse, and he finds his way there, and gets hurt, are we actually liable for that? My intuition is that we're not. Example: if I jump into my neighbor's yard uninvitedly, and her dog bites me, they are not liable for this incident. However, if their dog breaks into my house and bites me, then they are responsible for it. | You can start here, with the attractive nuisance doctrine, which is aimed at children and the fact that they don't have adult common sense. The extent to which you are at risk depends on your jurisdiction. However, a fence does not necessarily protect you, because children can find a way to get around a fence, instead you need to eliminate the risk (so you also have to identify the risk). This article reviews some of the outcomes in attractive nuisance cases: there is no simple rule like "put up a fence and you're safe". Insurance is more predictable, as long as you read the fine print. | In Common Law Countries In common law countries, Dale M. is right (the vast majority of the time). Without negligence there is usually no liability for damage to property in an accident. The general rule in the common law rule is that "shit happens" and no one is responsible for the damage, when no one was negligent and everyone defendant acted reasonably under the circumstances. The "shit happens" defense is generally a valid defense to a claim for property damages or personal injury in common law countries. "No negligence despite causation" findings are rare in auto accident or plane crash cases (absent truly extraordinary weather conditions or freak intervening causes like meteors falling from the sky that cause car accidents), but are common, for example, in professional malpractice cases. For example, suppose a reasonably competent surgeon does surgery on you in a fairly high risk case. The best surgeon in the hospital could have saved you. You didn't get that surgeon and died. There is no basis for a suit for medical malpractice against the surgeon since the surgeon was not negligent, even though the surgeon was not perfect. Also, sometimes the victim is the person primarily or totally at fault. For example, suppose a drunk driver T-bones your WellsFargo armored cash delivery car, which is built like a tank, in violation of a red light, with their SmartCar, and the SmartCar is totaled, while your armored car doesn't even have a scratch. Your car was a cause of the damage to the drunk driver's vehicle, but you have no liability for the drunk driver's losses, because you weren't negligent. Strict Liability Exceptions To Negligence Based Liability There are some exceptions if you have provided a warranty, guarantee, or insurance that the property won't be damaged (since contractual liability is generally strict liability unless otherwise provided by agreement). For example, you might be liable under a lease for any damage in excess of reasonable wear and tear from any cause other than the landlord's negligence. Sometimes there can be negligence by someone your are responsible for even if you aren't personally negligent (which is called "vicarious liability"). There is strict liability for accidents caused by defective products even in the absence of negligence, and for accidents caused by ultra-hazardous activities (e.g. explosives). U.S. states are divided about liability for animals that roam free with the main divide being between fence in states (mostly in the eastern U.S. and other more urbanized places) and fence out states (mostly in the west and more wild frontiers). There are a few other exceptions, but they are rare and somewhat inconsistent between jurisdictions. Comparative Fault Also, the modern trend in common law countries is to allocate liability for accidents based upon comparative fault or modified comparative fault. So, everyone who was negligent (including the victim), or would otherwise have had strict liability for the damage, is assigned a percentage of fault (adding up to 100%) that is their share of responsibility for the overall loss. If no one is negligent at all, there is no recovery. In modified comparative fault, if the victim is at least either 50% or 50%+ at fault (depending upon the state), there is no recovery. Some systems of comparative fault make negligent people who owe money jointly and severally liable with a right to contribution if you pay more than your fair share of the loss. Other systems limit each person's liability to their percentage of fault with no implicit guarantee of other negligent parties who are judgment proof. Who Determines Liability And Damages? In the U.S., and a small number of other jurisdictions, liability and damages are frequently decided by juries (and there is a right to a jury the vast majority of the time even if it isn't always elected). In most common law jurisdictions, liability and damages are always or almost always decided by judges (exceptions apply in perhaps 1% or less of cases). In Civil Law Countries In civil law countries (continental Europe, Quebec), the standard of liability for accidents in the absence of special cases like the ones discussed in the common law is that you are liable for damage that is your "fault." See, e.g. this article discussing civil law tort liability under Central American civil codes. It states: Much like in Europe (think of art. 1382 of the Napoleonic Code), in the Central American civil codes, the concept of tort ordinarily rests on a general clause imposing fault-based liability, though it is possible to identify among these civil codes some interesting variations. For example, only in Honduras (art. 2236) and Panama (art. 1644) tort liability is characterized using elements such as: action or omission, fault or negligence, and obligation to compensate. Whereas, Costa Rica (art.1045) and Nicaragua (art. 2509) add other elements to the characterization, such as fault and imprudence, and in the Nicaraguan text, the notion of malicious acts is also included. The Salvadoran Civil Code (arts. 2065 and 2080) is rooted in the classic construction of delict, quasi-delict or fault, although it also adds features such as malice and negligence. The exception to this trend will be the Guatemalan Civil Code (art. 1645). Although it uses terms such as intention, carelessness or recklessness as defining criteria, this provision is not really describing a fault based liability model, because it contains a rebuttable presumption of fault or negligence. The civil law concept of tortious fault is not spelled out in great detail in civil codes, although there are a few specific situations that are covered (e.g. bailments when your property is in the possession of another person and collapsing buildings). Civil law countries have instead been developed in legal doctrine in those countries that is not apparent from the civil code text. Basically, civil law tortious fault involves some culpability greater than mere "but for" causation of an accident, but involves a lower threshold of wrongfulness than the concept of "negligence" in the common law, which is a failure to act as reasonable person would have to prevent harm to others under the circumstances. You can have civil law tortious fault even if you were acting as a reasonable person, but you still have to have at least done something slightly wrong. So, there is still a "shit happens" defense in civil law countries, but it tends to be much harder to establish. Who Determines Liability And Damages? In civil law countries, the call is always made by judges (or by panels of judges in cases involving larger damages). | This is a fun one. I don't have any particular domain knowledge about this question. So this one is just a guess. My answer is strictly from a practical standpoint. If I were faced with this situation in real life, what would I do? (Technical point: I feel the vagueness of the language, "Is he allowed to" allows me to answer this way.) My assumptions: My assumptions are that: The cost of consulting an attorney on the matter or filing a law suit would likely exceed the combined total cost of the bike and the lock. Usually, the law follows what "feels right" and what makes common sense to the average person. Usually. Not always. But usually. (Legal principles: "Equity follows the law." and "Equity does not aid a party at fault." See this reference.) What I would do: So, I would do the following... (if I were in the U.S.) I would simply cut the bike lock and repossess my bike (unilaterally) if and only if all the following conditions were true in the situation: I could confirm without any doubt that the bike in question is actually my bike and not just another one that looks just like it. I could not find anyone around who looks like they might be the owner of the lock or the other bike. If I could find the owner of either the lock or the bike it is highly likely there was some mistake and the situation could be resolved directly with them. There are no law officers nearby. If so, I would engage them in helping me rectify the matter. If they said it was a "civil matter" and refused to get involved, I would proceed to the next item on this list. I had the tools handy and available to cut or break the lock. If any of the above conditions were false, I would flag down the nearest law officer or call one to the scene to help resolve the issue. Any other approach would seem impractical to me on the basis of my above assumption numbered 1. If I were anywhere outside the U.S., I would involve the local authorities without considering the unilateral repossession option. | I intend to close on the house as I've already signed all the loan paper work, but is there anything that can be done about a Realtor that breaks contract? You have probably waived your claim if you proceed with the deal knowing about the Realtor's conduct. What would your damages be? Could you have mitigated them by not agreeing to the deal? Also second question would it be better to seek a personal or Real estate attorney in such situations as this? Lawyers aren't that specialized. I would not recognize a "personal" attorney as something necessarily different from a "Real estate attorney" and the questions involved are not so complex that a general practice attorney couldn't handle them. Familiarity with real estate issues would be desirable (e.g. you wouldn't want to hire someone whose practice was exclusively as a criminal defense attorney or a personal injury lawyer, or a patent lawyer, for this task), but a great many lawyers who describe their practices differently would have the relevant experience and knowledge. | Rob is responsible. No Bull! Around the world, the law of wandering cattle depends on the details. New Zealand is no different. This case is covered by s 26 of the Impounding Act of 1955, Damages for Trespass. As you said, S 26(1)(d) says Bob is entitled to damages whenever his "land (whether fenced or unfenced) is situated in a city." This is different to the rest of the country, where animals must be fenced out. S 26(2) of the Impounding Act says the damage is owed by Rob, as the owner of the stock: (2) In any case where damages are payable under this section the amount of any damage shall be recoverable by action from the owner of the stock. It may be that Rob and Alice have some arrangement that Alice will indemnify Rob against any trespass damages. But that agreement does not change the underlying law; it only allows him to recoup his loses (by suing his mother, if necessary!). Added: Something fun to read Law professor Robert Ellickson studied how people actually resolve disputes over wandering cattle in Shasta county in northern California. There's a readable summary of what he found here. (The title of his book, "Order without law," sums up his main finding -- there are rules that are enforced, but those rules have little to do with the formal law or law enforcement.) | You have acknowledged that the house was in "new" condition, which establishes a baseline for determining if the present state is normal wear and tear. The lease and California law agree that normal wear and tear is not the responsibility of the tenant. You may then need to sue the landlord in small claims court to get the remainder of the deposit (the above guide will be useful). The thing that is not clear is exactly what constitutes "normal wear and tear". The state guide tends to emphasize extreme forms of damage such as dogs chewing the woodwork, or cigarette burns. If you do ordinary cleaning on the walls, windows, carpets etc. then it is more likely that the judge will find in your favor. | The main source of liability would be "for injuries caused by the act 'of things that he has under his guard'" (this article). As stated in Art. 1383. of the 1804 Civil Code, "Everyone is liable for the injury he has caused not only by his act, but also by his negligence or imprudence". Then the question is whether the teacher was negligent in allowing a poisoning to happen. It is much more difficult to judge French standards, since court rulings do not generally create legal principles. To take two extremes, suppose on the one hand that a teacher were to store a bottle of sulfuric acid on the table where anyone could take it. Knowing that some rapscallion might take the bottle and prank someone with it, the teacher might have neglected her duty as a teacher to safeguard students. However, if it is safely locked up and yet someone manages to get into the locker (e.g. they have a safe-cracking device that nobody expects a student to have access to), then she probably would not be liable. The difference comes from whether there is fault in the teacher's choices of action, that is, is that choice something that a reasonable person would know is wrong. It's not clear from the description how Bob got the substance: finding a means of preventing students from accessing dangerous materials should be the main goal, and probably does not require stopping experimentation. But facts about the school might imply that the risk is not practically controllable (e.g. no locks on the chemical cabinet). | 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. |
Not able go back to China with a B2 Tourist visa My relatives came to America from China (not Wuhan) in the middle of January, and they have a B2 tourist visa, meaning that they can only stay in the US for 6 months. They had planned to return at the end of the Chinese New Year holiday, but they are stuck here after their flight to China was canceled. Now, they have applied for many flights, but they were all canceled due to unforeseen circumstances. Their B2 tourist visa will expire soon, but they cannot leave. What should they do? Should they go to a court, or will this be automatically excused by the US? | They must apply for an extension of the visa: you can read about the UCIS covid-19 response here. The application must be "timely", so this should be done now. Even though the extension will probably be pending for some time, if the application is filed in a timely fashion, which puts off unlawful presence status. Also read about "Special circumstances". | They can't take his citizenship... Since he claims to be a born citizen, he has citizenship by birthright and nothing CBP can do can possibly revoke it. He can voluntarily renounce his citizenship, but he has to do that through the State Dept. (which CBP is not part of). And that is an elaborate and expensive process that can't even be done inside the United States. If someone could do it merely by entering without papers and asking for a self-deport, lots of expats would save a lot of money - and that's not gonna happen :) ...but they could put him to serious inconvenience In this particular case, CBP found his documents suspect. Probably because (if it's the case we've seen documented elsewhere) he was with two other people whose entry was illegal, and they had forged documents. So most likely, if he agreed to self-deport, CBP would use that as prima-facie evidence that he is not a bona-fide citizen, and therefore, that his papers are faked. They certainly will not give fake papers back to someone who has tried to pass them. So the victim would be obliged to go back to SSA, the state, etc. and re-acquire his identity documents. From outside the country. It's a pretty big chore. | The law was changed several times, and different versions apply to different age groups because certain rules were not changed retroactively. The page you link describes the situation for children born after the year 2000. My advice: citizenship is such a serious matter that you should consult a specialized lawyer, not a random crowd on the web. | You have the right to withhold this information; they have the right to withhold a passport. You do not have a right to a passport; it is a privilege and that privilege may be withdrawn at the discretion of the State Department for all sorts of reasons. As a US citizen you have a right to travel within the US; you don't need any papers for this. However, if you wish to cross an international border then both the country you are departing and the country you are arriving in will decide the circumstances under which you can. | Legally speaking, very many nations grant asylum, and religious persecution is one of the most basic grounds for granting asylum, following the 1951 Refugee Convention. This newspaper article compares asylum statistics in Ireland versus other parts of Europe. The Irish immigration authorities spell out the details for an asylum application. Note that you must already be in Ireland, to apply for asylum in Ireland (you should apply when you enter the country). One could also apply to Norway (almost an English-speaking country), but again you have to be in Norway to do so. There is a generic solution to the "what if I'm not in country" problem via the UNHCR, which can propose resettlement into various countries. I need to add that getting a visitor's visa from certain countries can be extremely difficult. To take an example, Norway (which is fairly open to refugees) is pretty up-front on the chances of getting a visa, based on country. To take a random example, they are not very optimistic about visitor's visas from Iran, and they say "we consider how probable it is that you will return to your home country or the country you live in when the visit is over. We consider the situation in your country and your own situation", "If we believe that it is unlikely that you will return, your application will normally be rejected" and "If you plan to visit Norway as a tourist, you will normally not be granted a visa". This is the fundamental problem that refugees face, the problem of getting there. One country that allows visa-free admission from Iran is Turkey. This guide (which is in Farsi so I can't comment on) provides practical information on the UNHCR asylum process "the political asylum process for Iranians in Turkey": that may indicate that apostasy is a different matter. Other evidence suggests that this option is worse than staying put. Only for the sake of discussion, Svalbard is a theoretical possibility. Svalbard (next to the North Pole) is part of Norway, but Norway treats it as being somewhat outside of Norway. It is outside the Schengen visa area, and it is a visa-free zone, meaning that nobody requires a visa to visit or live there. This is due to the Svalbard Treaty whereby Norwegians and treaty nationals have equal rights to the islands, and while most nations are not treaty signatories, it has been policy to extend those rights to everybody. The Governor does have the power to expel anyone who is a burden on local society (e.g. unemployable). Normally one would have to get a Schengen area visa to get there, which would be an obstacle, but it is apparently possible to get a same-day visa-free transit at Oslo Airport, if travelling non-stop to Svalbard (I cannot find a definitive policy statement on this matter, but I also am not sure where exactly to look). There are some air routes from outside Schengen where the first Schengen stop is Oslo. The Governor's office gives appropriate warnings about local problems (ridiculous prices, housing shortage, work shortage, more polar bears than people, really cold). | Answering my own question after some more research (which I should have done in the first place). Yes, it's illegal both in the US and in the EU Many airlines do it anyway because they are desperate for cash and hoping that no government agency will enforce it. A trade group is actually lobbying to change the laws Airlines will do what they can to make you accept a voucher. Some create an incentive, some make it just extremely difficult to get refund or they will simply deny it. If you accept a voucher, you waive the right for a refund. Only realistic option is a charge back through the credit card but I haven't found any successful examples yet. Good overview articles: https://onemileatatime.com/flight-cancelled-refund/ https://viewfromthewing.com/airlines-are-breaking-the-law-by-refusing-refunds-for-cancelled-flights/ | The State Department is mischaracterizing the law, which requires only that the US citizen "bear" a valid US passport, not that the US citizen "use" the passport. This law, 8 USC 1185(b), used to have a fairly stiff penalty, and it used to apply only in time of war. When the wartime element was removed in 1978, so was the penalty. It now reads Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport. If a US citizen attempts to leave the US without a valid US passport, there is a very small chance that the departure could be prevented by a CBP officer, but in the normal course of affairs the traveler would not even encounter a CBP officer, so the possibility is very remote indeed. There is nothing, however, that prevents a US citizen who also holds a passport issued by another country from using the other passport while also carrying a valid US passport. See also What is the penalty for US citizens entering/leaving the US on a foreign passport? at Travel and Can someone be penalized for an "unlawful" act if no penalty is specified? on this site. | DUI is a crime under Massachusetts law so Kurt would be prosecuted there by that state. Germany would offer consular assistance but this would not extend to preparing or paying for his defence. If convicted, and after serving his sentence, Germany and the USA would coordinate his deportation. The UK would offer consular assistance for the repatriation of Alice's body and for the participation of her family in the trial, again this would not extend to paying for it. They would not assist in any civil action Alice's family might take against Kurt in a Massachusetts court. While DUI is a crime in both Germany and the UK AFAIK they are not extraterritorial: that is the crime must be committed on their territory for them to prosecute it. Some crimes do have extraterritoriality but not DUI. Similarly, their courts would probably not hear a civil case because the correct venue is Massachusetts and they would probably entertain a motion to dismiss on that basis. Even if they did hear it, it would be heard under Massachusetts law. |
On which jurdical/legal ground can the FBI declare a foreign military officer a " wanted" person? I think I previously saw on the FBI website that northern corean/ chinese / russian military officers were considered as " wanted" by the FBI. My point is not that the US has no reason to suspect some foreign military officers of havng " bad" intentions regarding the US interests and security. I'm sure there are some such officers. What astonishes me is that the US governemnt overtly and through legal ways tries to prevent them from realizing their plans. I mean, is the US officially at war with Northern Corea/China ? If its not the case, then how is a juridical action against a foreign military officer compatible with the respect of sovereignty of a foreign country? For the foreign military officer is not acting in his own name. What does international law say about all this? Note : I went back today to the official FBI site but could not find the corean military officers any more. I found Chinese and Russian officers cases. | If the FBI has reason to believe they have committed a crime under US law Being an official of a foreign (or domestic) government in a military or civilian capacity does not make a person immune from US law except in the specific case of diplomatic immunity. There are some US laws that apply even if the perpetrator is not and has never been in the US, for example, computer hacking and fraud. So, if the FBI has probable cause they can ask for and get an arrest warrant. If the US were at war with this person’s country then, barring war crimes or crimes against humanity, military action against the US is not a crime. Naturally, exactly the same circumstances apply to US citizens vis-a-vis foreign laws. | A warrant is required: you cannot just bust into a home because the owner died. Nothing that you describe resembles the kind of emergency situation that allows a warrantless search. In order to get a warrant, you have to have a good enough reason. Suppose that campus police found a suspicious object at the scene which was evidence of a crime and which had an identifiable connection to his home. Campus police might get a warrant to search the home, to find evidence related to the possiblity that this was a murder. That evidence could be evidence that he had uncovered a terrorist plot to bomb Needles CA, and he was killed because of that. His home computer might contain records of contact between him and the terrorists: so the judge might grant a warrant. The FBI might also go to a federal court for a warrant for a different suspected crime, for example a planned bombing of Needles. Since this involves national security, this could be a FISA court, which is a secret court for surveilling foreign spies in the US. The daughter has the (apparent) authority to consent to a search – police are not required to inquire very deeply into a person's authority to consent to a search. If she doesn't consent, the police of the FBI might have probable cause for a warrant – it has to be an articulable reason, not just a mystical intuition (TV cop shows notwithstanding) that there must have been a crime and the house has evidence of the crime. | I'm not sure what jurisdiction you're referring to, but here are the state involuntary manslaughter laws. Broad brush, the elements tend to be: Someone was killed as a result of act by the defendant. The act either was inherently dangerous to others or done with reckless disregard for human life. The defendant knew or should have known his or her conduct was a threat to the lives of others. However, you're really backwards planning from a jail vs. army decision, so you might actually be after something like felony hit and run, which can most certainly result in incarceration. The elements of felony hit and run generally include leaving the scene of an accident regardless of fault (hit and run typically becomes a felony when someone was injured in the accident). Since the elements vary from jurisdiction to jurisdiction, it makes sense to look them up wherever the accident will take place in the book. If it takes place in the U.S. this is a state-by-state compendium. Then you can tweak the story to satisfy the applicable elements and induce the jail vs. army decision (even if army policy prohibits it, it's still pretty common fiction!). | I conclude (contrary to an earlier expression) that there is no such list, nor can there be, because the term "officer" is not well enough defined. The inferior officers are those officers who are not principal officers (as specified in the Constitution, e.g. ambassadors, cabinet members, judges), since there are only two kinds of officers. There is no constitutional or statutory definition of "Officer of the United States", so we have to figure it out from case law. As noted in Morrison v. Olson 487 U.S. 654 The line between "inferior" and "principal" officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. Officers of the US cannot be appointed by Congress (Buckley v. Valeo 424 U.S. 1 (1976), so that narrows down the possibilities – if in fact an appointment can be made by Congress, that is not an inferior office (since Congress has no such authority). That court also said that We think that the term "Officers of the United States," as used in Art. II, defined to include "all persons who can be said to hold an office under the government" in United States v. Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States," and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article. To take a specific example, "special trial judges", authorized in 26 USC 7443a are an example of an officer. We know they are officers, because Freytag v. Commissioner 501 U.S. 868 says so (since they read Buckley): A special trial judge is an "inferior Office[r]" whose appointment must conform to the Appointments Clause. Such a judge acts as an inferior officer who exercises independent authority in cases governed by subsections (b)(1), (2), and (3). The fact that in subsection (b)(4) cases he performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status. The Dept. of Justice offers an analysis of "Officer of the United States". The main elements in their opinion are that the position must possess delegated sovereign authority of the Federal government, and the position must be continuing. There are other criteria possibly applicable (things that were invokes at some time) including method of appointment, having been established by law, taking an oath of office, an emolument (not a volunteer), and receiving a commission. Still, Congress authorizes (by law) the hiring of federal employees, and not all employees are "officers". An earlier memorandum on the topic is here. Footnote 54 notes that It is at least arguable, however, that the authority exercised by second lieutenants and ensigns is so limited and subordinate that their analogues in the civil sphere clearly would be employees. Warrant officers and non-commisioned officers would likewise have quite limited authority. Since the definition of "Officer of the United States" is up for grabs, there can't be a complete list of inferior officers, especially if all military officers are included. There is a long list of civilian officers under the executive branch published in United States Government Policy and Supporting Positions, after each presidential election. The so-called Plum Book is on a government web page here in the 2012 version, and here for 2016. However, you will not find special trial judges of the tax court in the Plum Book, which were held in Freytag to be officers, and are civilians in the executive branch. The special trial judges are apparently listed here, as are the sitting judges (who are also not in the Plum book). | 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. | Edit: I didn't notice a that this question was tagged for Canada; this answer is based on U.S. law. "Must you stop walking" and "can the police detain you for leaving" are different questions. Must you stop? I'd expect a lot of variation from state to state, but there are definitely situations in which you must stop. In Ohio, for instance, an officer who "reasonably suspects" that that you have committed, are committing, will commit, or have witnessed the commission of violent felony, is permitted to stop you and ask for your name, address and date of birth, and it is a crime to refuse to provide that information. R.C. 2921.29. But at the moment the officer asks you to stop, you're in a tricky position. If you haven't done anything wrong, you'd be inclined to think that the officer has no basis to stop you and that you're justified in walking away. But if someone just called the police and said someone fitting your description just robbed a store two blocks away, the officer has reasonable suspicion that you committed a violent felony, but you have no way of knowing that. This sort of thing happens pretty much all the time. In the absence of that reasonable suspicion, though, Ohio courts have repeatedly held that it is not obstruction for you to just walk away (or even run!) from the officer. Can the police detain you for walking away? Obviously, if you're in a situation where it is a crime to not answer questions, the police can detain you because they just watched you break the law. But what about when you're within your rights not to answer? The police can still detain you with a Terry stop when they have a reasonable and articulable suspicion that you are committing a crime, or that you just did, or that you're about to. And they can continue that Terry stop until that suspicion is confirmed or dispelled, or until they can't reasonably expect to get anymore information by detaining you. Based on the facts you described, it seems unlikely that they could legally detain you based on your termination of the conversation. Still, I imagine that there could be circumstances where they might stop someone, ask questions, and then reasonably suspect that the person was engaged in a crime based on his decision to walk away, especially if the person hasn't explicitly invoked his Fifth Amendment right to silence. | "Does threatening to attack cultural heritage constitute conspiracy to commit a war crime..." Almost certainly not. It's a threat to commit a war crime, but is probably not illegal in and of itself. On the other hand, if the Commander In Chief were to ask his generals what would be involved in mounting a cruise missile attack on the Meidan Emam in Esfahan, that would be conspiracy to commit a war crime (as would supplying the requested information). | Foreign citizens are just as entitled to Fourth Amendment protections against search and seizure as American citizens are. The case you cited was, in fact, a South Korean citizen who successfully had evidence suppressed from an unjustified border search. |
Is legal to sell virtual goods? Is it legal to buy cheap virtual items (as game keys, in-game items, etc.) and then sell or trade them for a higher value? I have some items that went up in price and I'm thinking of selling them. These items can be up to 400€ each, making about 60€ profit with each one. Would it be legal to sell them? What if I was doing this weekly? Is there a maximum amount of money I can make a month with this type of "business"? I know laws depend on countries, but in this case, I think it must be something international related. In-game items are owned by my Steam account and they would be transferred to a buyer via Steam Trade Offer. In case of trading, I would receive his items the same way and in case of payment, I would receive the money on Paypal or PaysafeCard. | The sale of in-game resources for real-world money is usually disallowed explicitly by a game's terms of service. One notable case was Blizzard's successful injunction against Peons4Hire, a World of Warcraft gold farming company. Setting aside terms-of-use considerations (which vary by game/platform), the sale of virtual goods for real money is broadly legal. Wikipedia has a short list of jurisdictions with notable decisions on virtual sales; see the page's references for the official news stories or government documents. Most of the rulings have been positive for virtual-goods vendors, though China has banned the sale of real items for virtual currency (the opposite of your proposed plan) and South Korea has banned the sale of virtual goods for real money outright. Such sales incur normal tax responsibilities, just as any other income does. I don't know if any jurisdictions have imposed special legislation that place income limits or special tax rates for income from the sale of virtual goods. In the case of Steam specifically, the sale of virtual goods is broadly disallowed in Section 2.G of the Steam Subscriber Agreement, but narrowly allowed in Section 3.D. All virtual Steam goods remain the property of Steam, and you have a license to use them, which includes sale in limited circumstances. The prohibition in Section 2.G reads: G. Restrictions on Use of Content and Services ...you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Content and Services to other parties in any way, nor to rent, lease or license the Content and Services to others without the prior written consent of Valve, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); ... And the narrow permission to perform trades in the Community Marketplace in Section 3.D (per the above "except to the extent expressly permitted elsewhere in this Agreement" exception of 2.G): D. Trading and Sales of Subscriptions Between Subscribers Steam may include one or more features or sites that allow Subscribers to trade, sell or purchase certain types of Subscriptions (for example, license rights to virtual items) with, to or from other Subscribers (“Subscription Marketplaces”). An example of a Subscription Marketplace is the Steam Community Market. You can use the Steam Community Market to trade items for real money; this kind of real-money sale is explicitly allowed and facilitated by Steam. Separately, you can also trade giftable games (N.B.: game trading does not support real money) using Steam's trading system. Applying terms to a game-trade (like requiring payment external to Stream's trading system) appears to be disallowed by the broad prohibition in 2.G, but it's not very clear. The mechanical transfer of the game from one account to another is allowed, but the fact that it is actually a sale in a way that is not explicitly allowed seems to make it against the terms of service. I have no idea to what degree this is enforceable nor to what degree Steam polices against trades that involve Stream-external money transfers (though a cursory search of conversations in the Steam forums suggests they might not care very much). | I am not aware of any law making this illegal. You need to avoid any "bait and switch" tactics, though, like initially offering cola for $1 and then not actually letting them buy it for that price. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. | When does it become illegal to exchange bitcoin for cash? When the transaction purposefully skips the controls in place regarding anti-money laundering. Generally speaking, the issue is not the mere involvement of cryptocurrency in a transaction, but the crimes a wrongdoer seeks to camouflage or conceal by means of cryptocurrencies. Such crimes typically involve money laundering, identity theft, stolen card numbers, and the like. As quoted in one of the links you provide, "[t]he use of bitcoins in the transactions is a new technological flourish to this very old crime". Is there any direct source or any laws with numbers? Apropos of your first link, mentioning that "a Florida judge threw out money transmitting charges against a bitcoiner" (see also here), I will point out that the court's dismissal of charges against that defendant has been reversed early this year. See State v. Espinoza, 264 So.3d 1055 (2019). Although the judges' narratives of a case are questionable and/or sloppy and to be taken with a grain of salt, the appellate decision cites language from Florida legislation as applicable to virtual currencies (and, impliedly, cryptocurrencies). You will notice that the focus in the Espinoza decision is the interpretation of Florida Statutes in its sections 560.125(1) and (5)(a) (regarding unauthorized vendors), and 560.103(21), (29) (defining monetary value as "a medium of exchange, whether or not redeemable in currency"). As usual, each legislation may present subtle and/or fundamental variations. For instance, the court in Espinoza at 1065 identified that federal law is inapplicable there in that 31 C.F.R. § 1010.100(ff)(5)(i)(A) contemplates that "the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means" (emphasis added), and Espinoza's transaction(s) did not involve a third party. By contrast, the Florida statute does not allude to third parties in that transmission of monetary value, hence preventing the statutory sanctions from being preemptively foreclosed in the matter of Espinoza. What about when someone buys with stolen money or money from illegal proceeds. Did you commit a crime if you sell bitcoin to someone and the money is stolen, or the gift cards are stolen? That also depends on the jurisdiction and the facts of the case. In Espinoza, he was allegedly informed that the cash he received (or was about to receive) in exchange for bitcoins "derived from engaging in illegal activity and that [the buyer] was planning to use the bitcoins to engage in further illegal activity", Espinoza at 1058. The court highlighted the State's argument that "dismiss[ing] a charge of money laundering is improper because money laundering requires intent" (emphasis added), which is sanctioned by section 896/101(3)(c). | But lately he has had his friend use my PayPal account. Someone will send me money and then I transfer it to where he tells me. To cash app or venmo. That's money laundering. Definitely illegal. He said it's money owed for cellphones. People in jail aren't supposed to have cellphones. You are helping him break the law, which means you are helping him break the law. | I think the law there is quite clear - you have 14 days to return the goods for a full refund, except for digital content, which you can't return once you started downloading it. That's what it says. The arguments that you try to give were quite obvious to the law makers. I think you can assume they were aware that "digital content does not have a physical form". Now if you purchased, but haven't downloaded or started downloading yet, then obviously you can get your money back. You came up with some theory that this is a "visual vanity item". You can't see it unless you download it. Once you download it, that's it. If you don't download it, you can return it. Let me repeat this: Your fancy analogies mean nothing. There are in the EU laws about being allowed to return goods for a refund. There's the general rule for buying in a store (no right other what the store offers voluntarily), online purchases (some days to return), and online purchases of digital goods (no return once you started downloading). That's the law. Your attempts at redefining the situation are totally pointless. The law says what it says. What you try to redefine doesn't mean one thing. The law clearly distinguishes several situations, and analogies don't count. What happens counts. You bought from a digital item from an online store that needs to be downloaded. And as soon as you start downloading, there is your right to return it gone. And your reasons for wanting to return the goods are completely irrelevant. You don't need any reasons, and having reasons doesn't help you. | Is that extortion? false advertising? or in any way illegal? Not at all. The owner of the site is simply exercising his right as outlined in the terms and conditions from when the user signed up. And giving users an option for continued use of the site (that is, for him not to exercise a right of which they were always aware) does not constitute extortion. | Are online stores supposed to state the true “order cost”/value of an order on the package/envelope for the customs? Yes Is it common practice to slash 10x off of the price for the customs to not add various fees? Common? Probably no. Uncommon? Also, probably no. Isn't that illegal? Yes Of course, they can claim it was a mistake if ever found out, but if they do it consistently, that seems difficult... Not to mention there must be electronic proof of how much each order actually cost the customer? Yes Look, robbing banks is illegal but people still rob banks. Similarly, ripping off HM Revenue & Customs is illegal but people still do that too. In fact, far more people do that than rob banks. |
How can I protect my family land, my family relationships, and my husband? My grandmother is the sole owner of 40 acres of land. Her will states that it will be divided between her children, my aunt and my dad, upon her death. My father died a few years ago, and my grandfather last year. I have been living on the property for 3 years now, paying bills and assisting in paying the insurance and taxes on the land. In that time, I got married. My husband and I would like to stay on the family land and my grandma is overjoyed. We have plans that include building a house and starting a small business which would be housed, at least initially, on the land. She is so happy that she is talking about deeding the land directly to me soon instead of passing it on after she dies, and my aunt is supportive-I don't think she wants the hassle. Her only stipulation is that it would go directly to me and not my husband, which he understands. She offered the land to each of my siblings to caretake before me, but I was the only one to accept and move to the property. Now my siblings want to be named on the deed as well, and have some level of control. My concern is that if something happens to me and my husband has built his life here, what assurance does he have of not getting thrown out in the street? Is there a good solution to make everyone happy here? | Unfortunately, there is the law answer, and there is the family answer. The law answer is fairly straightforward - she deeds the land to you, and you leave it your husband if you precede him in death. The family answer is different. Many families have been torn asunder by inheritance issues. Your siblings seem to think they deserve a share, which is problematic if you are building there. Your choices are to split the land but buy your siblings out, establish a long-term structure lease on the land, or take the land and deal with sibling fallout. There may be other options an estate lawyer can recommend. Note that if your siblings are co-owners, then soon there will be many more as their children inherit. You need a local lawyer to do any of the above. | Call, write, or visit the office of your legislative representative. This page can help you figure out who that is. They have the ability to introduce a bill into the legislature that would change the law, and that's the best way to change a law like what you're trying to do here. Be sure to tell the legislator exactly what you think should be changed (e.g. "We should change section ABC of the Texas Property Code, < citation>, to say that 'no landlord can charge a fee of more than X for Y in Z conditions,' or something similar.") Then concisely summarize your reasons why. Consider consulting politics for more strategy on who and how to ask to increase the probability of success. Be sure to give some consideration to the reason why the landlords charge such fees and the costs they have to incur associated with lease assignments/changes. Try to craft a proposal that addresses those concerns, perhaps in some alternative way, and communicate the degree to which you think you understand and have addressed those opposing views. Also try to think about what new challenges or issues would arise if your proposal went into the law. The job of your representative and/or their staff includes listening to (a concise presentation of) your concerns and how you think the law should be changed, and representing those views in the legislature. S/he also has other constituents, including landlords, to answer to as well, and has to balance those potentially opposing interests before deciding what (if anything) to do. The degree to which you think the representative listens and represents your interests may determine whose campaign you support (including who you vote for and what you say to your friends/neighbors/family) in the next election. Another strategy is to negotiate with your next landlord to take those fees out of your lease agreement, and then the contract which governs your specific agreement might be changed to address this concern. If you want to change the law for everybody, you might have to convince a lot of people that it's a good idea. If you want to change the "law" for what affects you personally, you might only have to convince one person (your own landlord) that such a change is a good idea, at least in your case. | The Will Itself The two main points that are exceptional in this case would be: (1) to name a legal guardian for the child, and (2) possibly, depending upon the size of your estate, to name a conservator for the child (like a guardian but for a child's property), or a custodian of property inherited by the child (basically a trustee of a small, simplified trust) or a trustee of a protective trust for the benefit of the child. You might want to name a "trust protector" of the protective trust as well as a trustee, so that there is a designated person to supervise the trustee's conduct during the child's minority who isn't your ex-spouse. A protective trust will have provisions related to age and conditions and purposes of distributions. For example, it might say distributions according to need for health, education, maintenance and support until age 25, then distribute a third outright, then distribute half of what's left at age 35 outright then distribute the balance at age 45, and it might specify "safe harbor" acceptable purposes like higher education, apprenticeships, weddings, and investing in businesses with a reasonable prospect of success. You should also probably provide for any family pets. Many lawyers have standard clauses for that. You may want to identify specific items of tangible personal property that should be reserved for the child's future use at your death (e.g. an heirloom wedding dress), even though it won't be immediately useful. The guardian wouldn't supersede the parental rights of the other parent, but would have priority together with anyone named by your ex, to serve as guardian if your ex is incapacitated as well. There really isn't too much else that you can do in a will as there is a deliberate desire to prevent dead hand control of a child. Non-Legal Economic Options You should consider buying life insurance and making a trust for the benefit of the child the beneficiary of it to fund a trust for the child if you die. Talk to a financial planner or life insurance agent about it. Non-Legal Sentimental Options Of course, there are classic non-legal steps such as writing birthday letters or recording birthday audio/video tapes for the child, if you know that death is imminent and finding someone who will take responsibility for doling them out. Another thing that is sometimes done is to find a trustworthy person to entrust with secrets (e.g. your legal father isn't your biological father). One way to handle such matters is to have a safe deposit box with this kind of stuff in it and to entrust to trustee to deliver these items at appropriate times. | A lease of land is not the same as a residential lease, the latter being strongly regulated by special laws. So caveat emptor is the default rule for land leases (see this article). You have to look at the laws of your state, but let's take Washington as an example. This is not a residential tenancy which is subject to different laws, it's just leasing land, similar to leasing a chainsaw or a car. Your implied warranty would be that the land is fit for the ordinary purposes for which land is used, and that is all. It might be worth wondering about whether building a cabin on the land changes your property tax liability. | Absolutely not. You have to use the legal system, whereby the sheriff is the one who uses force if it is necessary and ordered by the court. You can file an action at your local courthouse. If you want to do this self-help style, figure out how to file a petition, and figure out what you are petitioning the court to do. First off, of course, you need to figure out what you really want. For example, do you want a squatter to leave your apparently abandoned house; do you want a fence removed from your property; or do you just want to be sure that he can't claim possession of a chunk of your land in 3 more years (but the fence doesn't bother you)? Since you're apparently talking about removing a person from your property, you might start by calling the police. If this is a former tenant as opposed to a stranger who broke in, don't bother (police don't get into civil matters until the court tells them to), just start the appropriate legal process. You might be filing an unlawful detainer action, but it would be a slower eviction if the person is a tenant. | Yes that seems to be the case. The section after the one you quoted, 551:11 Share of Unnamed Child says: If the property not devised nor bequeathed shall be insufficient to satisfy the just share of such child, after allowing advancements received by him, the same shall be made up in just proportion from the property devised or bequeathed to others. The page "Can I Disinherit My Child?" from a law firm blog, says: New Hampshire has a strong policy of protecting “pretermitted heirs,” which are heirs that were not mentioned in a Will. N.H. R.S.A 551:10 states that [e]very child born after the decease of the testator, and every child or issue of a child of the deceased not named or referred to in his will, and who is not a devisee or legatee, shall be entitled to the same portion of the estate, real and personal, as he would be if the deceased were intestate. Simply put, you do not name or refer to your child in the Will, then he can claim an inheritance as if you died without a Will. Historically and currently, the rationale is that if you did not mention him anywhere in your Will, you most likely forgot about him, because it is human nature to forget things. However that same blog page also says: There are various ways to disinherit a child. The most often used method is to specifically name or refer to the child, or a class, such as “my children” or “my son, Alex, and his issue,” that you intend to disinherit, and you must then state that you intend to disinherit that child. Another way to disinherit a child is to state that you give that particular child one (1) dollar, or a small sum of money. So it would seem that if one chose to include language such as: I leave to any other children I might have, and to their issue, if any, the sum of $10, jointly. then such possible surprises are covered. This would be after mentioning specifically any children one wanted to leave larger amounts to. | user662852 has a good point -- whoever own the property has the right to make the rules. Is the property, land+construction in fact your's or does it belong to the HOA who just grant you access as a lease holder? Different states has different rules, but in my state it is illegal to maroon a property and there must be a access to public streets even when this necessitate passing over somebody else land. However that is irrelevant if the HOA owns the land your house is build on. I think you will have to look at your HOA agreement and see what it says. | Your rights notwithstanding, the government has the power to do such things under appropriate circumstances. First, you would have to be in violation of some ordinance, for instance in Columbus OH you are a violator if the grass is over 12". This should generate a notice informing you what the issue is and giving a deadline for remedy. If you don't comply by the deadline, they are then empowered to send out guys with tools, and the city will bill you for the work. You could call them and ask what the deal is. They might say "We put the notice on your gate", or "we mailed it to you". From a legal POV, the onus is on them to be sure that you're notified. It would be a good idea to verify that this isn't a scam. [Addendum] Bryan TX kindly provides a video about code enforcement, and gives a link where you can go directly to the section of interest (starting 0:43). Your description of the situation is at variance with what they say is the law (12"; 7 day advance notice whereafter they will correct the violation. They also say no notice is required for second violation within a year; $100 administration fee added to costs; lien will be placed on property if unpaid). I assume that your back yard is publicly visible: they recognize that "when the area observed is plainly visible, from a vantage point where the Code Officer has the right to be there, there is no reasonable expectation of privacy". That could include visible from a neighbor's property if the inspector has permission from the neighbor to be there. Otherwise, there's a simmering 4th Amendment problem (assuming that they didn't get a search warrant). |
Can a lawyer compel a witness to read something aloud in court? Often on shows like Law and Order, a lawyer might ask someone on the stand to read something aloud. An example might be an academic putting forward one opinion, being asked to read an excerpt from a journal article they authored 20 years prior that contradicts what they are currently saying (this happened in one episode). Could the person on the stand refuse? Surely the lawyer can read it themselves or show the text on a projector to the court, and having the person read the text out loud might influence the jury and affect the outcome in a negative way for the person on trial. Is this just TV drama, or is there a legal basis? | Could the person on the stand refuse? Yes. The witness may refuse to read it aloud, which does not mean he cannot be compelled to do so. The witness may object on grounds you mention (prejudice) only if he is the defendant. Either way, the judge will make a decision on how that evidence is to be presented to the jury. Regardless of who reads the evidence, the witness may be ordered to answer the question of whether or not he authored that document. Defying that order could result in contempt of court or, depending on the context, the entry of an adverse inference. | Yes, you may call a defendant as a witness and compel the defendant to testify in a civil case. If you need this testimony to prove your case, you should have the clerk issue a subpoena for trial to the defendant and have that subpoena personally served by a process server upon that defendant (sometimes a witness fee, a mileage allowance, and a copy of the relevant statute must also be included in the package). There should be a standard court form available to do this. The subpoena to appear and testify at trial must be delivered to the defendant by the process server a certain amount of time in advance (usually two days, but court rules vary). Also, when you call a defendant as a witness you may generally examine the witness with leading questions, which is something that you are not usually allowed to do with witnesses that you call in your own case. Forcing a defendant to testify to the indisputable facts is a good way to meet your burden of proof towards establishing those facts. But, when you call a defendant as a witness, you should limit your questions to those you know the answer to and can ideally prove with other evidence if the defendant lies. Don't try to tell the entire story of the case with the defendant, just the undisputed facts. The one narrow exception to this would be a criminal contempt of court proceeding (i.e. one seeking the remedy of throwing the offending party in jail where there is no way to obtain relief by taking the action requested) prosecuted by a party within a civil case, to which 5th Amendment protections would apply. But, this would not apply to the kind of case described in the original post. | In the USA communication between an attorney and their client is "privileged". This makes it illegal for, amongst other things, the police to listen in to conferences between a suspect and their attorney. However in practice there is often little to prevent the police actually doing so. | I'm a notary. If someone showed me a marked-up license, I'd refuse to perform the notarization, and make a note of the persons name and phone number, to make sure I would never make another appointment with the person. Is there a law that says I have to refuse? I don't think so. Is there is a law that says I can refuse if I have any doubts about the person's identity? Absolutely. | This is a close call, in the example that you suggest, because it won't have been executed with the proper formalities and it isn't clear that the content at a url would be fixed in its language at the time that the Will is executed. Subject to an exception for personal property memorandums (and a more subtle one for powers of appointment in trusts) you can't change the terms of a Will once it is signed except by a Codicil executed with the same formalities. Certainly, the best practice would be to assume that the answer is no. There are times when a reference to an external document in a will is allowed (e.g. a reference to real property by address rather than a full legal description found in a recorded deed), but a list of beneficiaries would ordinarily not be allowed unless it was effectively a reference to vital statistics records (e.g. "all children born to or adopted by me.") In general, references to external documents are not allowed when used to establish the nature of the testator's donative intent (a "testator" is someone who writes a will), unless it "describes the writing sufficiently to permit its identification" and can't be modified after the Will is signed, but can be used to establish general facts about reality. One exception in Colorado is that a "personal property memorandum" designating who will receive specific items of tangible personal property can be incorporated by reference and does not have to be executed with the same formalities as a will. It isn't clear to me if a url could be a valid personal property memorandum and that issue has never been tested in Colorado. Colorado's probate laws are based on the Uniform Probate Code and would be substantially identical to any other jurisdiction that adopted the Uniform Probate Code's substantive provisions. The primary statutes governing this (which aren't necessarily easy to understand without context) are: Colorado Revised Statutes § 15-11-502. Execution--witnessed or notarized wills--holographic wills (1) Except as otherwise provided in subsection (2) of this section and in sections 15-11-503, 15-11-506, and 15-11-513, a will shall be: (a) In writing; (b) Signed by the testator, or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (c) Either: (I) Signed by at least two individuals, either prior to or after the testator's death, each of whom signed within a reasonable time after he or she witnessed either the testator's signing of the will as described in paragraph (b) of this subsection (1) or the testator's acknowledgment of that signature or acknowledgment of the will; or (II) Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. (2) A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. (3) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting. (4) For purposes of this section, “conscious presence” requires physical proximity to the testator but not necessarily within testator's line of sight. (5) For purposes of this part 5, “will” does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. and Colorado Revised Statutes § 15-11-503. Writings intended as wills (1) Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (a) The decedent's will; (b) A partial or complete revocation of the will; (c) An addition to or an alteration of the will; or (d) A partial or complete revival of the decedent's formerly revoked will or a formerly revoked portion of the will. (2) Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent's spouse. (3) Whether a document or writing is treated under this section as if it had been executed in compliance with section 15-11-502 is a question of law to be decided by the court, in formal proceedings, and is not a question of fact for a jury to decide. (4) Subsection (1) of this section shall not apply to a designated beneficiary agreement under article 22 of this title. and Colorado Revised Statutes § 15-11-510. Incorporation by reference A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. and Colorado Revised Statutes § 15-11-511. Testamentary additions to trusts (1) A will may validly devise property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death. (2) Unless the testator's will provides otherwise, property devised to a trust described in subsection (1) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and is administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death. (3) A revocation or termination of the trust before the death of the testator causes the devise to lapse, but exhaustion of trust corpus between the time of execution of the testator's will and the testator's death shall not constitute a lapse; a revocation or termination of the trust before the death of the testator shall not cause the devise to lapse, if the testator provides that, in such event, the devise shall constitute a devise to the trustee of the trust identified in the testator's will, and on the terms thereof, as they existed at the time of the execution of testator's will, or as they existed at the time of the revocation or termination of the trust, as the testator's will provides. and Colorado Revised Statutes § 15-11-512. Events of independent significance A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event. and Colorado Revised Statutes § 15-11-513. Separate writing or memorandum identifying devise of certain types of tangible personal property Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing shall be either in the handwriting of the testator or be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. There is not a statutory definition of a "document" or a "writing" in the Colorado Probate Code. | In the US at least, there is no mention of "mind reading" in the Constitution. But should such a technology be developed and actually used to read someone's mind and then that information was used against them in court, I can certainly see an appeal on at least 5th Amendment grounds. It's also possible that should such a technology become viable, that state legislatures and even the US Congress passing prohibitions on using it under certain circumstances. | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | Your main misunderstanding is that opposing counsel cannot testify. He can ask a question, such as "Did you say ...?", which provides Einstein an opportunity to answer in a way that maintains the credibility of his testimony, but consel cannot just enter his own testimony into the record. In addition, counsel on "his side" has the opportunity to pose appropriate clarifying questions, e.g. could ask "Did you repudiate that idea 88 years ago?", though there is a problem that the attorney may not have the technical expertise to recognize the subject-matter question that they should ask. Expert testimony does not attempt to determine the state of scholarship in an area, it attempts to resolve a specific factual matter. The two are not the same thing. Einstein would not testify as to what his general and special theories of relativity say, except in a bizarre universe where some person is accused of the crime of denying the theory of relativity. Instead, he might be testifying for the defense, where the defendant is accused of an act that (it turns out) is physically impossible in light of the theory of relativity. If Einstein had been in the habit of posing random mutually-contradictory conjectures on a weekly basis, opposing counsel's question could be relevant to establishing that the witness's testimony is not reliable. Theoretically, counsel could "hint" that the witness is scientifically flighty, so Einstein would have to have a credible explanation for changing his position. It is easy to demonstrate that scientists in general do change their positions as knowledge expands, so Einstein's burden would not be very substantial. |
How does the law on "pain and suffering" differ in the UK and US? In the UK, if someone makes a statement that "he is a cripple," or "she has problems holding her water at night," those are potential causes of action if they cause distress, even if the statement is true. (Truth is not an absolute defense.) In the U.S. if I break your antique vase, I could be liable for at least the market value of the vase. But if it has sentimental value because you inherited it from your grandmother, I could be liable for even more, based on pain and suffering. But I couldn't be sued for libelling your dead grandmother. How do these rules differ? Is it that in the UK, there could be "pain and suffering" independently of another tort, while in the U.S. it could take place only in connection with some other offense (e.g. the broken vase)? | Is it that in the UK, there could be "pain and suffering" independently of another tort, while in the U.S. it could take place only in connection with some other offense (e.g. the broken vase)? The whole question is too much for me to take on (there are significant differences in the law of non-economic damages between the U.K. and the U.S. beyond those discussed below), but I'll answer this part. The short answer is "yes," there could be "pain and suffering" awards (more often and more accurately called "non-economic damages" awards) in the U.S. that are not in connection with another offense that cause physical harm to the person bringing the claim or their property, even though defamation liability is more narrow in the U.S. than in the U.K. Non-economic damages may include pain, emotional anguish, humiliation, reputational damage, loss of enjoyment of activities, or worsening of prior injuries; in some states, they are referred to as pain and suffering. The U.S. recognizes a common law tort known as "intentional infliction of emotional distress" a.k.a. "outrageous conduct", that can award damages for purely non-economic harm that is independent of any physical harm to anyone. This has to be a course of conduct intentionally calculated to utterly crush someone emotionally without justification, generally through some form of humiliation. The nature of the conduct must far exceed what would ordinarily be considered harassment or taunting. There is also a closely related concept called a prima facie tort which involves intentional and unjustified harm to others not covered by another recognized tort, which is much less widely recognized. The U.S. also recognizes a common law tort known as "negligent infliction of emotional distress" which applies to allow a non-economic damages recovery from someone in the "zone of danger" of an accident that causes physical injury to another person or to property. The classic case would be brought by a parent holding hands with a child whose child is hit by a car and grievously injured or killed right before their eyes. This tort is not very common and not accepted in all jurisdictions. Closely related to negligent infliction of emotional distress damages are awards for loss of consortium, which is a claim for non-economic harm caused to a spouse by tortious conduct that injures the spouse by the non-injured spouse directly against the wrong doer by the non-injured spouse (in some states a parent can also make a loss of consortium claim with regard to a child). Also somewhat related is the concept of a wrongful death lawsuit, which is typically vested by statute in the next of kin of the person wrongfully killed, rather than in the decedent's probate estate, and can include both economic and non-economic damages. Often in a wrongful death case, rather than seeking economic damages, one can seek a flat compensatory amount fixed by statute called a "solatium" that is primarily representative of non-economic harm to the next of kin. There are also other U.S. torts which can give rise to non-economic damages without physical or economic harm to person or physical property. Non-economic damages without physical harm are frequently awarded in civil rights lawsuits brought against someone acting under the color of law pursuant to 42 U.S.C. § 1983 even when the right violated, such as a right to vote, or a right to use public accommodations in a manner not subject to discrimination, does not involve damage to person or property. Similarly, a violation of a discrimination or sexual harassment statutes, such as the federal Civil Rights Act of 1964, by a private individual can give rise to a claim for non-economic damages even without proof of economic damages. The U.S. also recognizes some privacy torts (not all of which are recognized in every state) and claims for breaches of fiduciary duty, for which there may be a cause of action for non-economic damages even in the absence of proven economic damage. For example, if an attorney breaches his duty of confidentiality to publicly reveal highly embarrassing personal facts about you, you could sue the attorney for non-economic damages. Claims for nuisance (e.g. from a neighbor's noisy or smelly conduct on the neighbor's own property) can give rise to claims for non-economic damage, and while they would often include claims for related economic damage (often quantified in the form of lost rental value of property), this isn't always required. Most U.S. states have abolished their heart balm torts such as alienation of affection (i.e. causing someone to divorce their spouse), "criminal conversion" (i.e. adultery), and also torts related to broken engagements to marry, but a few states, most notably, North Carolina, retain them and essentially allow private adultery lawsuits for both economic and non-economic harm (or one without the other). Claims for libel per se, which involve a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis) or dishonesty in business, can give rise to a claim for non-economic damages, in the absence of any proof of specific economic harm arising from the related damage to your reputation. The U.S. does not recognize defamation lawsuits based upon truthful statements, even though, under many historical criminal defamation statutes, statements tending to harm the reputations of the dead, and statements calling attentions to the natural deficiencies of the living (i.e. mocking mentally or physically disabled people) were actionable. Under U.S. law, freedom of speech protects those statements. | Now the party in question is threatening to sue (but of course refuses to point to which sections he believes are libelous) ... do we have to pay the $$ to "lawyer up" if we want to be safe? If you get sued, you will definitely want a lawyer. If you don't get sued, well, in that case you're safe. So your first question is whether the supposedly aggrieved party will actually sue. Your second question is, if they sue, do they have a good case? That question will be useful in deciding whether to settle. If the threats are empty then you might want to hire a lawyer to call their bluff. Otherwise you may have to endure the continual empty threats. This is especially true if the libel case is weak. Your lawyer can write a letter that explains why there is no case. If they do sue, they will have to identify the specific libelous statements, so you will at that point be able to refute the claims. But you'll also want a lawyer at that point, so you won't have to be directly concerned with the details; your lawyer will take care of them. As suggested in a comment, do keep in mind that a true statement cannot be libelous, by definition. To the extent that you can prove that every statement in the piece is true then you don't have much to worry about. But even then you'll want a lawyer's advice, because even if you know yourself that everything is true, you don't know what it will take to prove that in court. (Another aspect of the element of falsity is that statements of opinion are generally not defamatory.) To learn for yourself about the elements of libel you can start with Wikipedia or a bit of internet searching. To get a thorough analysis of the facts of your case in light of the laws of the relevant jurisdictions, you will need to engage a lawyer. It might not cost as much as you fear. | In a civil rights action in which someone prevails (which is by no means certain in this case, but not impossible either), there is at a minimum an award of nominal damages (i.e. $1) and the reasonable attorney fees and litigation costs incurred in the lawsuit. A jury could also award a prevailing party non-economic damages, and/or exemplary damages (a.k.a punitive damages) in connection with a violation of civil rights. There might also be injunctive or declaratory relief stating that this was a violation of civil rights and requiring the government to adopt practices to prevent harm going forward. It is hard to see how there would be any economic damages at issue in this case, but it isn't impossible to imagine some circumstances in which they could be proven, perhaps. | If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear. | The earliest mention of the principle that I can find is in Rolston v Secretary of State for Northern Ireland [1975] NI 195, where the matter of compensation for the widow of a police officer murdered in Northern Ireland arose. I am sure there are earlier cases that express the same principle in different terms, however. It is a broad principle that applies to most areas of civil law, and I cannot find an original source for it. I imagine that it is simply "received wisdom" that has been repeated long enough to become a cornerstone of the law of restitution in England and Wales. There is currently no statutory basis for the principle so I cannot cite any relevant Acts of Parliament either. | 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. | My understanding is that defendants in Britain have to prove statements true by the preponderance of evidence, whereas in the U.S. the standard of evidence is "compelling" (a lower standard). This is not the case. Preponderance of the evidence can still be the burden of proof in the United States (in a civil libel case, although it must be proof beyond a reasonable doubt in a criminal libel case). But, the difference is in what has to be proved. In Britain, it appears to be necessary to show that the statements are true in order to prevail. In the U.S., it is merely necessary to show in a case like this one (because it involves a matter of public concern) that the statements were made with knowledge that they were false, or with reckless disregard to the truth or falsity of the statements made. A factual basis for believing the statements made to be true is a defense if the basis is at all reasonable, and is a complete defense if the factual basis for making the statement is disclosed and that is true or believed to be true by the speaker. It is not necessary for the statements to actually be true under U.S. law in a case such as this one, although actual truth is also a defense, which is not the case in all circumstances in U.K. law, and was not the case under the historical common law. Historically, defamation claims could be brought for statements critical of the monarch, for statements pointing out the natural infirmities of someone for example by mocking a person with low IQ, or for speaking ill of the dead. Furthermore, the U.S. has a variety of doctrines that make it hard to find that a false statement was made in the first place. For example, statements of opinion are not actionable and many of the alleged falsehoods in the McLibel case would be considered to be statements of opinion in U.S. law rather than statements of fact. Similarly, U.S. law does not require that statements be literally true, and instead recognizes that a defendant may have been engaged in using hyperbole, or may have gotten the gist of the accusation right even though strictly speaking the exact statement made is not technically true (e.g. someone might say that a company paid a "penalty" when it actually paid a settlement amount in a lawsuit seeking a penalty or paid an amount representing compensatory damages only rather than a penalty amount). In the same vein, it must be clear from the context of the statement that the person making it intended it to be received as a truthful account and not a mere parody or satire which was intended to be understood as false. For example, I couldn't sue someone who made a knowingly false statement that I assassinated King George V, who died several decades before I was born, or that I was telepathically controlling my uncle because I had a space alien parasite in my spine. Those claims are so absurd that they would be inferred to intended to be fictional on their face. Certain kinds of falsehoods (e.g. lying about one's military record in a a political campaign) are simply not actionable as a matter of law, no matter what, as the harm is not concrete enough. There is not, however, necessarily a defense under U.S. law to defamation liability if the defendant said many things that were true, but something else that would be defamatory in isolation. For example, even if everything else were true, if the defendant had also stated that the CEO of the Plaintiff was convicted of leading a Nazi concentration camp and killed millions of people, which would have been possible given the CEO's age, knowing perfectly well that the person with a similar name to the CEO who did so was someone else who died an untimely death decades ago, that statement might be defamatory and actionable (at least by the CEO personally and probably by the company if it was alleged that he was hired despite the fact that the company was aware of this circumstance). | 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. |
What counts as personal data under GDPR? As a developer of software intended for use by EU citizens, I am committed to complying with the personal data requirements of the forthcoming legislation (EU Regulation 2016/679). There is a definiton in Article 4 (1): ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; In my opinion, the above definition is pretty wide and the directive texts are quite heavy. I would like to see a definition/list of examples of relevant personal data that software engineers and developers would find usable when developing software intended for use in the EU. I hope this question is not regarded too wide. I consider it to be a practical problem and hope for great answers. | The answer is right there in the quote: any information relating to an identified or identifiable natural person So if the data can in any way be tied to a specific individual then it is personal data. Note that you have to consider the data collection as a whole - even if there are no names in your data, if there is enough info in it that you can work out who the individual is (or probably is) its personal data. Obvious things include names, dates of birth, physical addresses, electronic addresses, social media profiles etc. Less obvious things include job or profession, memberships of organisations, friends and associates, town/suburb etc. i.e. things that in combination can reduce the set of people it could be to a small number of individuals. Basically, if you collect and store information about individuals in any way you are caught by this regulation. Even an email address used for login is personal data in that it identifies an individual and tells a hacker that they use your software. Examples of what is not personal data includes information about judicial persons (companies and other organisations that are sufficiently large that individual information cannot be inferred) or properly anonomized data where the data set is sufficiently large that identifying any particular individual is highly improbable (several dozen people at least depending on how revealing the data is). | There is nothing extraterritorial about these laws. If a company sells a good or provides a service to individuals based in the EU, then this good or service has to comply with EU laws. This concept is self-evident for physical goods that are produced anywhere in the world and then sold in the EU and the GDPR just applies this concept to services provided over the internet. The same legal concept also holds in all other major jurisdictions. The only thing that makes this more complicated for the GDPR is the actual enforcability of these laws but that is a technical issue not a legal one. | Congrats, you've done well to minimize your processing of personal data. But I think you're still processing personal data, and are subject to the GDPR. Serving a website necessarily involves processing an IP address. This IP address will typically be personal data. While you are not storing the IP address, the GDPR's definition of “processing” extends beyond storage and pretty much covers doing anything with that IP address. As far as I know this is not an entirely settled matter, but it's better to err on the side of caution and to assume that you are in fact performing a processing activity. Even a static web page can easily lead to additional relevant processing of personal data, for example if the HTML embeds resources from third party domains. Since your website is clearly targeted at the public, it does not fall under the GDPR's exception for “purely personal or household” purposes. So I think you do need a (minimal) privacy notice that contains at least the items mentioned in Art 13 GDPR. The main reason why some people try to avoid posting a privacy notice is because it must disclose your identity and contact details. But in Germany, that information has to be provided anyway due to the Impressumspflicht. As part of your GDPR compliance obligations, you must protect how data is processed by others on your behalf. A hosting provider will typically act as your data processor. For this to be legal, you need a contract / data processing agreement that fulfills the conditions in Art 28 GDPR. This contract binds the data processor to only use the data as instructed by you, and not for their own purposes. European hosting providers sometimes include the necessary terms in their terms of service / AGB, but you should check to make sure. Netcup expects you to accept their data processing amendment in your account settings. In the hypothetical case that you were not processing any personal data at all, the GDPR would not apply and it wouldn't require you to post a privacy notice. Other laws might still have information obligations, notably the German TMG and TTDSG. | Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself. | No, you do not need to show a privacy policy just for running a publicly accessible server, as long as any traffic data such as IP addresses is only used as strictly necessary for providing the service requested by the user. The background here is that while GDPR is a very general law, the ePrivacy directive (ePD) provides more details for telecommunication and information society services, which also includes SSH servers. Per ePD Art 6, traffic data may be used (1) for the purpose of the transmission/service or when the data has been anonymized, (2) for billing purposes, or (3) for marketing or value added services, when the user has given their consent. Information about the processing is only required under ePrivacy for cases (2) and (3), but not for processing that is strictly necessary. Now the tricky question is under what circumstances you can log (failed) log-in attempts or use tools like fail2ban. One argument is that such measures are strictly necessary to ensure the security of the communication, but these measures are evidently not necessary for performing the transmission in the sense of ePD. There are a few ways to resolve this: necessity has to be interpreted more broadly, and security measures are indeed necessary. For example, ePD Art 6(5) mentions fraud detection, without authorizing it explicitly. an IP address is effectively anonymized in the sense of the ePD since you do not realistically have means for linking the IP address to any particular person. This is a fairly weak argument, but could be supported by GDPR Recital 26 which defines anonymous data. Counterpoint: IP addresses are online identifiers which are explicitly included in the definition of personal data in GDPR Art 4(1). an IP address is not just traffic data that falls under the ePD, but also personal data that falls under the GDPR. When the IP address is merely used to make a transmission, it is not processed as personal data and only ePD concerns apply. But when we process it to ban the IP, it is processed as personal data under a legitimate interest. This processing does not fall under any of the categories from ePD Art 6, so that only GDPR concerns apply. These include a requirement to inform the data subject about the processing at the time in accordance with GDPR Art 13, which could be satisfied by displaying a link to a privacy policy in the course of the login process. For a legitimate interest argument, it also depends on the expectations of the typical data subject. Since some security measures such as security logs are normal and should be expected, a legitimate interest argument is likely to be strong. I think this is the correct conclusion, even though the “it's not traffic data, or at least doesn't fall under the ePD” argument is quite weak. It hinges on the assumption that security measures are not “value added services”. This fits the intent of the ePD, but not the actual definition of value added services. In any case, you do not need to ask for consent unless you're required to obtain consent e.g. under ePD Art 6(3) or because your processing of personal data relies on consent as the legal basis per GDPR Art 6. It also has to be noted that ePD has no immediate effect, but has to be implemented by each EU member state in national law. These laws can provide more specific guidance. | Privacy against publication of criminal convictions has been considered in the High Court in NT1 & NT2 v Google LLC [2018] EWHC 799 (QB), if I may run the risk of posting a legal citation myself. But note that the claimaints there are anonymized, as often happens in criminal trials as well. In some cases, the court may give an injunction against disclosing names or details, and can hand down both a public and a private judgement, with the latter being a restricted document that does have the identifying details. So this question could only apply to mentions of criminal process where the accused is actually identified. (And I think just saying "R v Smith" is not enough - the posted or linked text would have to give some identifying detail about which Smith it is, the nature of the crime, etc.) I have no qualms at all about talking about NT1 and NT2. The claimants brought a case against Google for making available information about their long-spent convictions, including on GDPR grounds although it took place just before the implementation of GDPR in UK law. Dealing with that argument under the prior legislation, the judge found that of the various exemptions claimed by Google, the condition The information contained in the personal data has been made public as a result of steps deliberately taken by the data subject. (found in the Data Protection Act 1998, Schedule 3, paragraph 5, implementing the Data Protection Directive that preceded GDPR) applied, because of a longstanding principle for criminal conduct. The idea is that (paragraph 111): A person who deliberately conducts himself in a criminal fashion runs the risk of apprehension, prosecution, trial, conviction, and sentence. Publicity for what happens at a trial is the ordinary consequence of the open justice principle [...] The same must be true of the details of the offending, and other information disclosed in open court, including information about himself which a criminal reveals at a trial or in the course of an application. The core principles are the same as the carve-out from defamation law for the fair and accurate reporting of criminal proceedings (paras 44-49). That "made public" condition can now be found in a slightly different context in the Data Protection Act 2018, Schedule 1, Part 3, paragraph 32, which mirrors Article 9(2)(e) of the GDPR for the purpose of Article 10: This condition is met if the processing relates to personal data which is manifestly made public by the data subject. Since this is virtually the same condition of European provenance, in the same context of surrounding rules, I think the precedent is a good guide. For courts themselves, law reports, and journalism or scholarship, there are other specific grounds to rely on. Individual Stack Exchange posters are surely covered under the general exemption for posting on social media in a private capacity, GDPR 2(2)(c) as interpreted through its Recital 18. For the site itself, as in the case of NT1 and NT2, there could well be a legal claim made about the inclusion of criminal conviction information in a posted answer. (In general, such a post, being free text, could contain all sorts of defamatory statements or other objectionable content.) The court would have to look at the competing interests and the level of harm. NT1 was not successful but NT2 was. The example scenario, where we are talking about a very brief mention of a criminal case, cited because it illustrates a legal point rather than because there's anything relevant about the person mentioned, is quite far from the grounds complained of by NT2. For NT2, there was a newspaper article in which he was "quite inappropriately, portrayed as one of a rogues' gallery of serious criminals" (para 188), eight years after the end of his sentence, and it was this that he wanted removed from search results. In particular, the academic exemption (para 13) seems strong, in the same way that it would be for a publisher of legal academic content. The test of "substantial public interest" does not apply, because this exemption comes through paragraph 36 in the case of criminal convictions; it's enough to show a reasonable belief that publication would be in the public interest. Google was not able to rely on the "journalism" version of this exemption (again, under the prior law) because they are a totally generic search engine for all kinds of data and purposes (para 100 of the 2018 judgement). The public interest test, and the accompanying "legitimate interest" for the data controller, do not seem too difficult in this example. | Yes If you are in the EU, or your players are in the EU and your service is targeted at some part of (or all of) the EU, then this pretty clearly falls within the scope of the GDPR. Such a service would be collecting data associated with natural persons. At least some of it would be made public along with an online identifier, and other parts would be processed and stored, even if disclosed only in anonymized form. (By the way it is a non-trivial task to anonymize data well enough that it is no longer persona data under the GDPR. But let's suppose yoru methods are good enough.) Under GDPR Article 6 the DC must have a lawful basis for such processing. If the basis is "consent" then the consent must be freely given, whch means giving consent may not be a condition of using the service. Under GDPR Article 13 a notice must be sent to the Data Subject (DS) when the data is collected from the subject, including some 11 items or categories of information about the collection process, the Data Controller (DC), the purposes of processing, the legal basis of processing (which the DC must define), who will receive the data, the data retention period, and various rights of the DS. Such a service must be prepared to respond to data access and data erasure requests, under articles 15-17, and data restriction requests under article 18. It must provide a method for a DS to easily make such requests. Other GDPR provisions may well apply in addition to these, but that is enough to show that such service is very likely to be within the scope of the GDPR, unless none of the DSs are present in the EU or the related market area. | Art. 15(4) GDPR says: (4) The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. If I was the controller in this situation, and I believed that this would endanger the students that have criticised the professor, I would base my argument for not complying on this. In addition, Art. 85 GDPR requires member states to: [...] reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information [...] So you may be able to argue that the students posting messages are engaging in "processing for journalistic purposes and the purposes of academic, artistic or literary expression", depending on the laws of the particular member state. (edit: this could be difficult since you mention it is a private database). The second case seems just like the first in terms of GDPR, but may constitute defamation. Defamation (or libel) laws differ wildly in each country; he Wikipedia article on Defamation explains the situation in each member state in more detail. In the third case: if the professor submits a request based on the rights of a data subject other than himself, they don't need to comply. These requests need to come from the data subjects themselves, not just a random person assuming authority. (although I suppose it's possible for them to give power of attorney to the department head if they wanted to) Personal data and the rights that GDPR provides to data subjects always relate to a natural person, not an institution or a company. |
Is there any american law which ensures a lesser penalty to a pawn than to the mastermind of a crime? I'm writing a story and I would like a more realistic approach on the plot. The point is: there is a lawyer doing bad things (because a mix of love and money) and he must (following orders) write all of those things on a report. However, since he is a lawyer and he is not the mastermind behind those things, I'm thinking if there is something that he could write on this report, in a law perspective, to minimize his penalty if he gets caught. For example: "according to article X, since I was just following orders, I appeal to my Y rights" or anything like this. It don't has to be a elaborate defense (but I will be glad if it will) since it is just a side note on a book full of proves of his crimes. If it matters, the story take place in Oregon, USA. | There's nothing he can really write that any court would have to listen to - after all, from the court's perspective, he could have been lying when he wrote it down. And following orders is generally not a defense (although if he was under actual duress, like they were threatening to kill him if he didn't do it, that could be a defense.) But being a pawn rather than a mastermind can impact the sentence. If the crime is a federal one, the Federal Sentencing Guidelines adjust the offense level according to the role in the crime: §3B1.1. Aggravating Role Based on the defendant's role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels. (c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels. §3B1.2. Mitigating Role Based on the defendant's role in the offense, decrease the offense level as follows: (a) If the defendant was a minimal participant in any criminal activity, decrease by 4 levels. (b) If the defendant was a minor participant in any criminal activity, decrease by 2 levels. In cases falling between (a) and (b), decrease by 3 levels. The lawyer would probably not qualify as a "minimal participant" if he's writing reports detailing the activity, as this shows he's aware of the extent of the illegality. He would, however, probably qualify as a "minor participant". If the crime was a state crime, then according to Oregon rules: (1) Subject to the provisions of sections (2) and (3) of this rule, the following nonexclusive list of mitigating and aggravating factors may be considered in determining whether substantial and compelling reasons for a departure exist: (a) Mitigating factors: (D) The offense was principally accomplished by another and the defendant exhibited extreme caution or concern for the victim. (E) The offender played a minor or passive role in the crime. | Yes Usually, whoever got their hands on the defendant first would have first crack at it. The second jurisdiction would commonly not prosecute provided that justice was done in the first but they can - double jeopardy is not in play as a bar as they are different legal systems but courts usually apply the spirit that a person shouldn’t be punished twice for the same act. | 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. | 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. | 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 | See jury-nullification. I'm not a legal historian, so I can't say for sure what the laws on jury acquittals were at that time in that jurisdiction. However, when a jury has final discretion to acquit a defendant of a crime that's it: They can effectively ignore laws if they want to acquit someone. Such acquittals do not set a precedent or have any bearing outside of the trial in which they issue their verdict. | The core principle of stare decisis is that the law should not depend on what judge you got; two cases with the same facts should have the same outcome. In the common-law tradition, there weren't really written statutes; there was only "what's been done in the past," and so the only reference you'd have to what the law should be in some situation is past court decisions. If judges didn't have some constraints to rule similarly to before, there really wouldn't be any legal standards (because there was no written law to go back to; in civil-law countries, there always has been a written law, so precedent isn't so important). Stare decisis doesn't actually directly stop a judge from entering a decision that goes against binding precedent. However, judges are expected to obey precedent, and for the most part do what they're supposed to do. If they don't, the case will likely be reversed on appeal. Binding precedent only applies within the area a court serves; a court doesn't have to listen to precedent from a different court that has nothing to do with the case. The rule is that precedent from any court up the appeals chain is binding; federal district courts are bound by their circuit court and SCOTUS, state courts are bound by higher state courts and SCOTUS (but not other federal courts, as the case can't be appealed to them). A court can sometimes overrule its own precedent, but the cases where it can do that are rare (and so applying a higher court's precedent can also be viewed as "if you appeal to them they'll say X, so we're saying X.") | The alternative is the same whether just one lower court or many lower courts ignore SCOTUS precedent. An aggrieved parts will appeal the lower court ruling, and the matter will work its way up the ladder until SCOTUS directly rules on this application of the law. This sort of happens all the time, when lower courts don't apply the ostensive "final ruling" because they find that there is some other overriding consideration ("that rule only applies to businesses employing more than 50 people"). Where the case to be remanded to lower courts for further proceedings consistent with SCOTUS opinion and still the lower courts refuse to comply, i.e open rebellion, SCOTUS could rule that non-compliance by lower courts constitutes contempt, and an order could be issued for the removal (in some form) of offending parties (we may presume, the justices of the lower court). The statute outlining court power allows on order of imprisonment for "disobedience or resistance to its lawful writ, process, order, rule, decree, or command". Federal marshals would then arrest non-compliant judges, unless the marshals too are in open rebellion. If the judges in question were federal judges, the marshals would have to decide whether to obey the order of SCOTUS vs. the order of the district or circuit court. Since under the US Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", it is objectively established that SCOTUS rulings are superior, so provided that the marshals elect to uphold their oath of office, they will enforce the SCOTUS ruling. However, citizen action becomes irrelevant once SCOTUS has made its ruling, and the matter has moved from legal determination of fact to enforcement of established fact. |
Does entering Peace Arch Provincial Park count as physical presence in Canada? With travel across the US-Canada border being highly restricted (even citizens/PRs need to quarantine for two weeks on arrival), many Canadian permanent residents living and working in the US near the Canadian border may have difficulty meeting the residency requirements of being in Canada for 730 days in a five year period. (Being in Canada for any part of a day counts as a whole day in Canada) One can enter some (very limited) parts of Canada legally though. For example, one can enjoy 9 hectares of Canada by entering Peace Arch Provincial Park, which just reopened today, and many married couples separated by the border got to see and hug each other. Would someone living near such parks be able to meet the Canadian permanent residency requirements by going to such parks every day? Assume that one can provide evidence e.g. photographs with timestamps, and social media checkins. Assume that one is also be willing to mount a legal challenge should the Canadian authorities deny that entering the park counts as physical presence in Canada. | Exact wording might matter here, so I looked up the law. It says "a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are physically present in Canada". Immigration and Refugee Protection Act, 28(2)(a). If you visit the Canadian side of the park, you're "physically present in Canada". It would therefore appear that this would meet the requirement. I am by no means an expert in Canadian immigration law, though. | Should this be taken to mean that a physical barrier (with out signage) does not deny entry? It seems that a physical barrier alone does not deny entry under subsection (b)(1). This entire section is defining when a person has committed criminal trespass. Apparently breaking through a fence with no sign does not constitute criminal trespass, unless one of the other sub-sections applies. But it may constitute simple trespass, and it may constitute some other offense, such as breaking and entering. Note also that subsection (b)(4) adss a person who: knowingly or intentionally interferes with the possession or use of the property of another person without the person's consent; to the list of those who commit criminal trespass. That might apply to a person who enters by damaging a fence. Also as a second question how does no trespass signage affect delivery people Section 2(g)(6)(B) exempts the owner's: (i) family member; (ii) invitee; (iii) employee; (iv) agent; or (v) independent contractor; I would think that a delivery person would be either an invitee or an independent contractor. Or perhaps some other provision applies. As for nearby provisions in the code, Section 35-43-2-1 defines "Burglary" in terms of breaking and entering with intent to commit theft or felony. Section 35-43-2-1.1.5 defines "residential entry" in terms of breaking and entering a dwelling. Section 35-43-2-1.3 deals with unauthorized computer access. | Utah has a lot of public parks, so to point in the right direction, I will assume that this is a public park in Salt Lake City, it's just a plain old grassy field, and it's not during a special event. A person is suspected of some crime like selling drugs, not arrested, but told by a police officer to go away and never come back. This is way beyond the power of the police. After due legal process, a proven (not just suspected) public menace could be ordered by the court to stay away from the park. A police officer can, of course, order a person to leave a park when they violate a park rule, in fact rule number 1 is "It is unlawful for any person to do or to allow or permit any of the acts prohibited by this chapter in any park in Salt Lake City", so the police cannot legally turn a blind eye to rule violations. Violation of park rules is an infraction which can earn you a ticket of up to $299. However, the officer can tell you to go away, rather than giving you a ticket or arresting you. But an police order cannot issue a unilateral restraining order. Apart from city laws, there are general state laws regarding trespass and destruction of property. The state criminal trespass law says that A person is guilty of criminal trespass if...knowing the person's... entry or presence is unlawful, the person enters or remains on to which notice against entering is given by...personal communication to the person by the owner or someone with apparent authority to act for the owner In this case, the owner is the city, and the officer has apparent authority to act for that owner. In the case of private property, the owner or his agent has very broad authority to give notice requiring you to leave (e.g. if you don't like their politics or their shirt); but in the case of public property, the government has more narrowly circumscribed authority to kick you out. | Criminal Code 293 outlaws polygamy and bigamy, and identifies as an offender Every one who (a) practises or enters into or in any manner agrees or consents to practise or enter into (i) any form of polygamy, or (ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or (b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii) In other words, it is against the law to go through the ceremony with multiple partners, and to "enter into a conjugal union", even if not solemnized in any particular fashion. "Common law marriage" is broadly recognized in Canada (except in Quebec), with specific details governed by the province. This too is a case where people who "act as if" married are treated as actually married, given certain circumstances (which exist in a polygamous marriage). The question of having children is not relevant to the law, indeed having sex is not a requirement for something to be deemed a polygamous marriage, and the law against polygamy also says nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse. In this particular case, we do not know the specific details, but it is reasonable to assume that there was no posturing or faking, and there were multiple solemnization ceremonies, so the polygamy is overt. The claim is that it is constitutionally protected. | Statelessness is a very serious condition. It is quite likely that a person such as you describe may be required to board an aeroplane to that country but will not be permitted to pass through immigration on arrival - Mehran Karimi Nasseri lived in Charles de Gaulle airport for 18 years in this condition. There are many people in the world who are stateless and this may or may not affect their lives. Citizenship is generally only an issue when crossing international borders or in employment situations, the latter is significant in advanced countries but less of an issue in countries with less-developed economies. | Will UKVI allow a concession for this specific situation? Only your wife's UKVI caseworker can definitely answer this with any certainty, but as you say CR2.3 (b) does seem quite compelling but (c) less so - unless the medical records support her condition was "life-threatening" ...any period spent outside the UK will not count towards the 180-day limit if the absence was for any of the following reasons: [...] (b) travel disruption due to natural disaster, military conflict or pandemic; or (c) compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or life-threatening illness or death of a close family member; [...] | 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. | This story is plausible but the technical legal details are probably wrong. It is completely illegal to transport a pistol in a car in New York State if you do not fall into the list of exceptions § 265.01-b: A person is guilty of criminal possession of a firearm when he or she: (1) possesses any firearm or; (2) lawfully possesses a firearm prior to the effective date of the chapter of the laws of two thousand thirteen which added this section subject to the registration requirements of subdivision sixteen-a of section 400.00 of this chapter and knowingly fails to register such firearm pursuant to such subdivision. Since the question mentions the firearm locked in a glovebox I'm assuming it is a pistol. Comments have suggested and certain exemptions in the law suggest that there isn't a licensure or registration requirement for manual action long guns, but I have not found the specific section exempting them from the possession law. There is a long list of exemptions to the possession law in § 265.20, but the only one that could be applicable to a person just travelling through the state might be section 13: 13. Possession of pistols and revolvers by a person who is a nonresident of this state while attending or traveling to or from, an organized competitive pistol match or league competition... Notably, for a regular citizen they must have a New York State carry permit to possess a handgun, and their long guns must be registered with the state: 3. Possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter or possession of a weapon as defined in paragraph (e) or (f) of subdivision twenty-two of section 265.00 of this article which is registered pursuant to paragraph (a) of subdivision sixteen-a of section 400.00 of this chapter or is included on an amended license issued pursuant to section 400.00 of this chapter. Neither applies to someone simply travelling through the state to another state who hasn't fulfilled the appropriate license or registry requirements. What may apply, however, is the federal Firearm Owners Protection Act, which in part codifies 18 U.S. Code § 926A: Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console. The notwithstanding in this case preempts state law and affirms that transporting a firearm between two states that allow the person to carry that firearm cannot be a crime assuming they meet the statutory requirements on carrying the firearm and ammunition. However, he failed to meet those requirements by keeping the firearm in the glove box, which the federal law specifically does not protect. Therefore, NY State law is allowed to apply and he can be charged with possession without a license under NY State law. The part about whether or not he stayed overnight being a distinction may be a retelling error or conflating this law with similar state laws that allow transporting firearms that are inaccessible in the vehicle as long as the vehicle doesn't stop in the state beyond minor pit stops (e.g. for gas). |
Is it legal for someone to try to pass of my website as their own as long as they've kept the same MIT license? The source code for my personal website is publicly visible on GitHub and hosted live with GitHub Pages. Back when I was creating this site, I didn't really understand the implications of copyright law too well and gave it an MIT license under my name. I also have a clear copyright notice in the footer of my website. Yesterday, I discovered that someone else forked my repository on GitHub, changed the repository name to be under their name, and has been editing my site content to try to pass it off as their own, even changing the footer to claim it's under their copyright and leaving many of my blog posts published on their version of the site. I filed a DMCA takedown claim with GitHub, but I'm wondering whether I am within my right and what steps I should take to protect myself in this particular case and future ones. So my question: Has the user done anything illegal if they've kept my original MIT license? What license should I use to protect myself in the future? | IANAL, just a programmer with an interest in legal rules. Due to the very permissive nature of the MIT license, no, it does not appear that anything illegal has been done. Specifically, the section to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software (emphasis mine) grants everyone the right to modify your code and share those modifications, provided one includes the license. Since this person has included your license (including your copyright notice), they have followed the conditions of the license and are able to share your stuff. Legally. Ethically, I still think its ****. This might be a good starting point in selecting a license (note the Modification column). https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licenses The CC-BY-SA license family, as mentioned by Ron Beyer in comments is on this list, for example. TL;DR: You unfortunately granted a more permissive license than what you wanted/needed to. This was a BadThing(TM), analogous to giving too broad of access rights to a method or class. Determine your desired permissions, then select a license that matches what you'd like to grant. | Whenever there is a license to share things, the license creator wants the license to be widely used, but absolutely does not want slightly different licenses that could be used to trick people, or that just cause legal problems when used. Normal copyright law applies. And for the reasons above, the GPL license as an example allows you to copy the license verbatim but absolutely doesn’t allow you to make any modifications other than changing who is the person licensing a work. I would be curious what happens legally if someone licenses something with a sneakily modified copy of the GPL and then makes claims against a licensee who assumed it was the original GPL. | 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. | You can put anything you like in a ToS document, but not everything you might put there will be enforceable. By posting something on the web, you are inviting anyone to read it. In some jurisdictions that may include the right to make and store a personal copy, although not multiple copies or a copy for commercial use. You can taker technical measures to prevent automated access and automated downloads (scraping). There was a case (hiQ Labs, Inc. v. LinkedIn Corp, 938 F.3d 985 (9th Cir. 2019)) in which access restrictions were held binding in a US court, but in that case the site owner had notified the would-be reuser (a competitor) directly. The laws on this sort of thing may differ from country to country, and are not as well-settled as older parts of the law tend to be. The question asks: can I list in my terms of service that all users acknowledge I own their posts ... The only way in which the host could "own" the posts would be if the users transferred copyright to the host, or granted the host an exclusive license. Under US law this would take a written and signed document. Clicking an "I agree" box or button might constitute a valid signature. A statement that "by using this site you agree ..." would pretty clearly not. You might prohibit bots copying from your site and posting duplicates, but to prohibit users re-posting their own messages elsewhere is harder, legally, and leas reasonable in my view. Under US law you could not actually file suit for copyright infringement until you had registered the copyright, but that is not true in many other countries. | No, it means you can't copy it. By default, the copyright to a work is owned by its creator, and nobody else is allowed to copy it, or create derived works, without their permission. That permission can be granted by a license. "License unknown" doesn't really tell us anything, but it certainly isn't clearly granting you permission. So you don't have permission to copy, and thus you cannot. You would have to seek permission from the copyright holder. See also If no licence is distributed with an application/source code, what license applies by default if any? (Some jurisdictions do allow for "fair use" exceptions, which allow you to copy a work without permission. You haven't said what jurisdiction you are in.) | In a hypothetical case like you are describing, you could make a contract with them regarding the duplication of the content, irrespective of copyright law. Their violation of that contract would not necessarily be a copyright violation (which would allow statutory damages), but you might win a breach of contract lawsuit. But if someone took it from them and made copies, you would likely not have a case against that person because copyright would not protect you and you have no contract with them. In addition, you could obtain a very "thin copyright" in a particular new presentation of the material. This would mean that copyright law would apply, but only to the particular presentation (e.g. new footnotes, a particular layout, etc...) If considering doing this IRL, you should consult a copyright attorney. | As Greendrake says, you can legally create your "open source" license. There are two problems with this: Since you are not an experienced contract lawyer, there is a significant risk that your license doesn't do what you intend it to do. As a consequence, people who you want to use your software might not do so, because your license prevents it or makes it too risky. Or people may use your software in ways that you didn't want to allow, because the text of your license doesn't prevent it. Your license terms may be incompatible with other open source licenses. For example, I might want to use GPL licensed software A, and your software B with your license in my application. Being careful, I give both licenses to my lawyer, and the lawyer says, "sorry, you cannot possibly follow the terms of both licenses, because GPL and Ky's license require that you do two contradictory things. You can use software A and follow GPL's terms, or you can use software B and follow Ky's license terms, but you can't use both". All in all I would recommend that you use a widely used open source license. | Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else. Paragraph (f) also says that if a person files a false infringement claim, they become liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts. Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law. [Addendum] I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law. |
What's the license of a license? If I were to take license texts of publicy available licenses, such as the WTFPL, to add some paragraphs and create my own license, which I then ship with content created by me, would that be legal? What about AGB's for example? I'm sure companies put a lot of work/money in form of lawyers into writing the terms, and often it can't be prevented to make them open source. Three options seem to be plausible to me: (a) license not yet specified and anything possible (b) public domain (c) same license as the license if a license. (Initially intended to include the here used CC BY-SA 4.0, but after some additional search I found out that all CC licenses are itself licensed public domain. The question remains for the WTFPL for example, which is clearly copyrighted but without a license for the license given. Could use of the text be revoked / sued?) | Whenever there is a license to share things, the license creator wants the license to be widely used, but absolutely does not want slightly different licenses that could be used to trick people, or that just cause legal problems when used. Normal copyright law applies. And for the reasons above, the GPL license as an example allows you to copy the license verbatim but absolutely doesn’t allow you to make any modifications other than changing who is the person licensing a work. I would be curious what happens legally if someone licenses something with a sneakily modified copy of the GPL and then makes claims against a licensee who assumed it was the original GPL. | "Terms of Service" implies that you are providing a service. If it's offline, you probably aren't doing that. You can still have a license agreement that applies. If certain types of CC licenses are involved, you may even be required to. | This appears to mean that the author, while retaining copyright, is allowing anyone to make copies without asking permission from the author. This would seem to be similar to a CC-BY license, or perhaps more exactly a CC-BY-ND license, as the author has apparently not granted the right to create modified versions or other derivative works. This does not require one who makes such copies to distribute them free of charge, unless there is another provision not mentioned in the question. Amazon, or anyone else, would be free to sell copies at any price they cared to ask. If the author wanted to limit the sales price, that would take another provision, and might not be enforceable. | 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. | Assuming Chegg own the copyright, then they can restrict the activities that copyright protects The statement you quote is no more or less than the rights granted to them by copyright law. Basically, it's their stuff, they get to decide how you can use it. However, that does not necessarily mean that the uses that you have nominated are prohibited. For that, we would have to look at the specific fair use or fair dealing exemptions to copyright protection where you are. It's likely that both of your usage scenarios would meet fair use and probably fair dealing (which is harder to meet). You may also find that, buried somewhere in those massive terms of use, is something that deals with this directly. | While I agree that the license required for your use case isn't particularly obvious to me, the page you have linked to includes the following paragraph: Need help picking your license? Just shoot us an email at [email protected] and we’ll help you decide which license makes sense for your needs! So in this case, my recommendation would be to get in touch as described, that way you will know for sure that you are properly licensed. | I know that some of this may be covered by either the Creative Commons license or the OGL it was published under, but it's not clear to me how far those freedoms extend. It was all published as materials under copyright to the original authors, TSR, WotC, &c. and if things had been left like that hszmv's answer would've been completely correct: stay vague and allow users to enter those names and descriptions, talk to WotC's lawyers and sales department about license fees, or just keep it to yourself and your friends. You're right, though: WotC went whole-hog, dumped their partial OGL idea, and relicensed some things as Creative Commons. There are different Creative Commons licenses, though, some restricting commercial use that would still keep your app to yourself and friends without a specific licensing agreement. Go find out exactly what WotC put under CC. If it's only the Player's Handbook, then you can only use names and descriptions that are from the Player's Handbook and you're still facing a cease-&-desist if you start adding in Monster Manual info.If it's everything, it's everything they have but still won't include any older modules that they don't have the right to change the copyright status of. It'll still be under copyright, usually until 70 years after the death of the original creator. For Gary Gygax, that'll be 2078. Expect that length to extend during your lifetime though. US copyright usually extends every time Mickey & friends come close to entering the public domain. [Edit: The comments below suggest it might only have been the Systems Reference Document (I assume for 5e). It's 403 pages of not nothing but it's not much given the universe we're talking about. The spell and monster lists are generic. Bigby is nowhere to be found and the only mention of a beholder is a reminder not to use the name beholder without their written approval.] Go find out exactly which CC WotC used. The article above says "all use" but you need to find out the exact number of the Creative Commons license for each thing you're using and make sure all of your uses fall within its terms. Some are basically free use but still insist you mention the copyright holder prominently or in every use. Go ahead and do that if you have to. [Edit: The comments below say it is probably CC 4.0. The SRD download page says you can use CC 4.0 or their own OGL. In both cases, yes, you must acknowledge WotC by name in a way prominent enough to satisfy the license you choose.] And of course, Don't trust legal advice from internet randos or ChatGPT. If this is a serious thing you're going to be spending a good chunk of your life working on or expect to make significant money from, go talk to an actual lawyer. Bonus points for one specialized in IP with a knowledge of roleplaying and the way it's been (partially) opening up lately.If you start off just by talking to WotC's lawyers, just do that somewhere where you get their explanations and permissions in writing. Then keep that somewhere safe in electronic and hard copy. Then still take that with you when you go talk to your own lawyer. | There is language, but not a mechanism, covering this. Section 3(a)(3) of version 4 licenses says If requested by the Licensor, You must remove any of the information required by Section 3(a)(1)(A) to the extent reasonably practicable. If you become aware of a person using your material and attributing you, and you want the attribution removed, you would accordingly notify them (somehow), and they are required to remove the offending material. The removable informations includes: i. identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated); ii. a copyright notice; iii. a notice that refers to this Public License; iv. a notice that refers to the disclaimer of warranties; v. a URI or hyperlink to the Licensed Material to the extent reasonably practicable; |
Can I build something for personal use if it is patented? Say I like building things and I see an interesting product on the internet. Having seen this, and having the means to build something similar, the interest in the product, and the ability to understand how it works, is there anything wrong with borrowing public information about an object to use in building it myself? I would not attempt to share this object I built, for monetary purposes or otherwise. I would not claim ownership of the object. I would not assist others in building one themselves, aside from maybe showing them the publicly available information I started from as well. Is it legal to create this product and use it personally? | The title of your question suggests that a patent is involved, but it isn't clear from the rest of your question if that is really the case. Simply seeing a product on the internet does not mean that there are any patent rights attached to it. If a patent does exist, then that patent's protection is defined by its claims. In the US, if you make or use an object that includes all the elements of the claims of a granted patent, then you are infringing that patent. It does not matter whether you share the object or attempt to make money from it—simply making or using it is enough to qualify as infringement. That said, based on your intended use, the patent owner is highly unlikely to ever find out about your infringement. Further, even if they did, enforcing patent rights in court is incredibly expensive (typically involving multi-million dollar legal budgets), and they wouldn't stand to recover much from you, so it is even less likely that they would sue you for the infringement. | 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. | Their code, their rules A copyright holder is free to offer their work under none, one or many licences. They can, at the same time, use their own work however they see fit without regard to the licences they have given/sold to others (except, they can only give one person an exclusive licence). As an analogy, let’s say I own a fleet of cars. I can drive my cars anytime I want. I can let Jim drive my cars anytime he wants for free. I can let Mary drive a specific car on Thursdays and only within 10km of the depot. I can let Joe drive my cars providing he pays me $50 a day. And I’m not going to let Fred drive them at all because Fred’s a jerk. Each of those is a different licence. | If you do, can you build/run it without being bound by said license? No, you cannot. Because there is no way to "build/run" it without making a copy. You copy the sourcecode, before you can run your compiler. That is the copy you are making, not copying the file that results from this process. A valid question might be, are you bound by the license? Well, that is up for lawyers and a court to decide, but in all countries I know, copyright is automatic for anything worth copying. And the copyright holder can grant licenses to people to allow things. So arguing you are not bound by a specific license would mean you would argue that you are bound by the legal default, which in most countries is "You cannot copy that. At all. Unless you have explicit permission". That argument would sound like "I stole all 10, because the offer of buy-one-get-one-free was not legally binding". Maybe it wasn't. But that doesn't mean you get to do something unrelated illegal instead. Now, there are many exceptions for "personal use". You can sing any song in the shower. I would assume you can compile any program there, too. You just cannot use that program for anything worthwhile, the same way you cannot record your song in the shower and sell it. | Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display. | Yes and no. [note, the following is all written about US law. In other jurisdictions laws are, of course, different (though usually not drastically so.)] In the US there are (at least) three different bodies of law that might apply to code: copyright, patents, trade secrets. Copyright covers original expression. Anything you write is automatically, immediately protected under copyright. The copyright applies to the code itself, and anything "derived" from that code. It's up to the courts to decide exactly what "derived" means. One case that's long been viewed as a landmark in this area is Gates Rubber v. Bando Chemicals. The Court of Appeals for the tenth Circuit decision includes a section titled: "The Test for Determining Whether the Copyright of a Computer Program Has Been Infringed." Note that you can register a copyright, and that can be worthwhile, such as helping recover some damages you can't otherwise. Patents are quite different from copyrights. Where a copyright covers expression of an idea, a patent covers a specific invention. Rather than being awarded automatically, a patent has to be applied for, and awarded only after the patent office has determined that there's no relevant prior art to prevent it from being awarded. A patent, however, covers things like somebody else independently discovering/inventing what's covered by the patent. A trade secret could (at least theoretically) apply to some process or procedure embodied in the code. A trade secret mostly applies to a situation where (for example) you're trying to form an alliance with some other company, and in the process tell them things you don't tell the general public. If you've identified the fact that what you're telling them is a trade secret, and they then tell a competitor (or the general public, etc.) or more generally use that information in any way other than the originally intended purpose, it could constitute a trade secret violation. As a side-note: patents and copyright fall under federal law, so they're basically uniform nation-wide. Trade secrets mostly fall under state law, so the exact details vary by state. Absent a reason to believe otherwise, I'd guess your interest here is primarily in copyright infringement. The key here would be showing that one piece of code was derived from the other. That is, it specifically would not apply in a case where there were only a limited number of ways of doing something, so anybody who wanted to do that had to use one of those ways. Since this would not indicate actual derivation, it would not indicate copyright violation. | Copyright and patents are two very very different things. Copyrighting a standard means the wording of the standard can not be copied without the copyright holders permission. It does not protect the ideas expressed in the document, just the way those ideas are expressed. IEEE standards, for example, are copyrighted by the IEEE and therefore you can't make a copy of the Ethernet specification, you need to buy it from them. That has nothing to do with implementing an Ethernet device. To implement something described in a technical specification might or might not require one or more patent licenses. The authors of the standard may not even be aware that something they require for the standard has already been invented and patented by someone else. Many standard bodies do impose a requirement on participants in the standard's creation that they offer licenses to any patents they own that are needed to implement the standard on a fair and equal basis to all. It is called FRAND - the acronym for fair, reasonable and non-discriminatory licensing. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. |
Does the ATF have jurisdiction to prohibit gun sales to marijuana users when the marijuana used is not subject to federal jurisdiction? Does the ATF have jurisdiction to prohibit gun sales to marijuana users when the marijuana used is not subject to federal jurisdiction? https://www.law.cornell.edu/wex/commerce_clause If the marijuana used was grown locally and did not travel in interstate commerce it would seem that the use of marijuana in states where this use is legal could not be construed as illegal under federal law because the federal government lacks jurisdiction under the commerce clause. Apparently smoking marijuana takes away your 2nd amendment rights: https://www.atf.gov/firearms/docs/open-letter/all-ffls-sept2011-open-letter-marijuana-medicinal-purposes/download | The Supreme Court has ruled, in Gonzales v. Raich, 545 U.S. 1, that Congress is empowered to pass the Controlled Substances Act: whether or not you agree with the ruling, that is what the current law is. Citing Wickard v. Filburn, 317 U.S. 111 and Perez v. US, 402 U.S. 146, the court held that If Congress decides that the “‘total incidence’” of a practice poses a threat to a national market, it may regulate the entire class because Congress may conclude that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity Then comparing Raich (a medical marijuana case) and Wickard, the court held that In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity. and the Court has no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA While there are various differences between Wickard and Raich, the court gets to decide which similarities are most important and which differences should be set aside. The disagreement is not trivial: O'connor, Rehnquist and Thomas dissented, finding that the Commerce clause is there to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government But it was a minority view that the states should have to power to set in-state rules for commerce. | 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. | Religious protection from federal warrants is not a First Amendment issue. If protected at all, the best argument would be in RFRA, the federal statute implemented in 42 U.S.C. §2000bb-1 et seq. It provides that the "Government shall not substantially burden a person’s exercise of religion..." except if the burden "is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest." It is my guess that every court in the U.S. would agree that a search warrant issued upon probable cause is in furtherance of a compelling governmental interest, and having an agent or two walk through the house (or whatever is necessary in order to exercise that warrant) is the least restrictive means of furthering that interest. | There are several federal excise taxes on firearms. The main ones are (dispensing with the fine definitional details and Internal Revenue Code citations): A tax on transfers of firearms of $5 per concealable firearm and $200 per firearm on certain other firearms; a $500 per year firearm's dealers tax which is increased to $1000 if you import more than a certain number of firearms per year; a 10% of sales price excise tax on pistols and revolvers; and an 11% of sales price excise tax on other firearms and on ammunition. Of course, like any other business, firearm's dealers also have to file annual income tax returns on their revenues less their expenses on tax forms that depend upon the form of organization of the business (e.g. C-corporation, S-corporation, partnership/LLC, trust, etc.). The IRS has the right to examine the books and records of people who owe or are believed to owe taxes without going to a court to obtain permission to do so. Treas. Reg. § 1.601.105. Subject to certain exceptions, information obtained by the IRS in a review of a taxpayers records and their return information are confidential. 26 U.S.C. § 6103. There are criminal penalties for (slightly over simplifying) tax offenses including willfully failing to keep records necessary to file tax returns, willfully attempting to evade or defeat taxes, willfully failing to collect and pay taxes where required by law to do so, and willfully making false statements to IRS employees or on returns. 26 U.S.C. § 7201-7212. If the government provides probable cause to a federal judge or magistrate in connection with a possible criminal tax prosecution that there is probable cause to believe that a taxpayer has committed a criminal tax offense, then the government may obtain a search warrant to seize records without the advanced notice available in the usual civil record examination process. For example (not based on any facts I have been told about or read about in this particular case), suppose that a former employee of a firearm's dealer or an ex-spouse of one of the owners of the business, told the IRS that the dealer intentionally lied on their excise tax return by underreporting the number of firearms the dealer sold and that the dealer then kept the sales taxes collected from unreported buyers who completed Form 4473, and told the IRS criminal division investigators where the Form 4473s were kept at the dealer's offices. In that case, it would be routine for the IRS to obtain a federal search warrant to obtain those forms to seize and review in connection with an excise tax fraud investigation. If there was just an income tax audit, bank records and accounting records obtained by subpoena from banks and accountants would usually be sufficient. But this would cease to be the case if the inventory records obtained by subpoena from the dealer's suppliers, for example, and the accounting records, didn't match. If there was evidence of unreported firearm sales income, or of unreported excise taxable sales, the IRS would usually need to compare the the Form 4473s of the business to its income and excise tax returns filed with the IRS. It would be routine to obtain these records with a search warrant rather than a civil office record review with advanced notice if tax fraud was suspected. The Form 4473s due to IRS confidentiality requirements, wouldn't be publicly available to anyone by the IRS and criminal investigators (not even members of Congress or local law enforcement), and would probably only be presented in redacted or summary forms in a criminal tax fraud prosecution at trial. In all likelihood, the IRS doesn't care about the customers who filled out the Form 4473s at all, and isn't even bothering to investigate them (except possibly to spot check for fake social security numbers or names, which appear on the forms, to see if fake information was used to Form 4473s used to substantiate tax records). Instead, the IRS is probably simply tallying them up and noting dates of sale, putting them in a spreadsheet, and seeing if they are different from what was reported to the IRS on the dealer's tax returns. If the dealer, for example, paid the proper excise taxes on 800 guns in 2022, but had 1200 Form 4473s in banker's boxes at its offices, then the people involved in the tax fraud at the dealership are probably going to go to federal prison for a few years. Indeed, they would probably just plead guilty rather than going through a futile trial where documents with their own signatures on them from boxes seized in their shop clearly establish their guilt in that case. Federal firearm excise tax fraud prosecutions aren't terribly common, but they are about as plain vanilla as they come in the world of federal criminal prosecutions. This certainly doesn't portend any threat the Second Amendment rights or any crack down on the firearms industry. In terms of this message this sends, this is really no different that seizing the electronic records of a gas station that filed false gasoline excise tax returns to show how much gasoline was actually sold, and prosecuting the people who engaged in the tax fraud for that. The argument that a Form 4473 isn't a "financial record", when it provides documentation of all of the information except the price on all of the dealer's firearm sales (Manufacturer, Model, Serial Number, Type of Firearm, Caliber or Gauge, number of firearms sold, and check boxes for tax exemptions), and the fact the some of the federal firearm excise taxes due don't even depend upon the price of the firearm, isn't a very strong one. Even if the search warrant didn't single out Forms 4473s from other kinds of business records, this would probably just be harmless error, because the IRS absolutely has the right to ask for and seize Form 4473s in connection with the tax fraud investigation, just like any other business record of a firm suspected of not paying its taxes. These records aren't protected by any evidentiary privilege in a federal tax fraud prosecution. Also, combined with past sales fliers and catalogues and business records about sales pricing for different products from the dealer in its accounting records, it would be fairly trivial to use this information to recreate a very accurate forensic reconstruction of the gross firearm sales revenues of the dealer and the amount of excise taxes that should have been paid. It would be tedious work, but it would be extremely damning evidence of tax fraud if the estimated sales significantly exceeds the sales reported on the dealer's tax returns. Even if the some of the documents in a particular banker's box aren't within the scope of the search warrant (for example, perhaps someone put Christmas Cards and as well as accounting ledgers and cancelled checks in the same box), the IRS would not be beyond its rights to grab all of the banker's boxes of documents, review them at their leisure in a government office, and then return the contents of the boxes that turned out to be something other than what the IRS requested a search warrant to seize. A good faith belief that the boxes seized has some financial records in them would justify taking them away, reviewing their contents, and returning materials that were beyond the scope of what was sought. The IRS criminal division agents don't have to look through the many, many banker's boxes page by page at the dealer's place of business to screen them at that time at that level of detail. Similarly, the IRS agents are not required to assume that boxes actually contain what the label on the outside of the box says that the box contains. Of course, if the Form 4473s corroborate the tax returns filed by the dealer apart from minor clerical errors or uncertainties about the exact sales prices of sales reported on them due to irregular discounts provided by a dealer who sometimes haggled over the prices of used firearms, the dealer would be vindicated and the informant who triggered the investigation and prosecution (if there is evidence that this informant willfully lied to IRS investigators) might even be prosecuted for making an intentionally false report to a law enforcement officer. The dealer wouldn't be entitled to reimbursement for criminal defense expenses or harm to the dealer's reputation, but it would still be a huge PR coup and the criminal charges would go away, probably long before a trial was even held. Montana Attorney General Austin Knudsen absolutely knows all of the facts in the post above. His claimed fear of a crackdown on gun users is something he is doing to willfully mislead the people of Montana for political gain. He may also be throwing stones at federal prosecutions because he was irritated that the IRS and Justice Department didn't keep him in the loop on this tax investigation in his state which he sees as his turf, even though it was purely a matter of federal tax law violations which his office didn't have jurisdiction over. Indeed, the IRS may have kept him in the dark and out of the loop from this investigation, in part, in order to protect taxpayer and gun owner privacy by not sharing confidential IRS investigation information with state law enforcement officers, something that it is not allowed to do. | It works by prohibiting discrimination based on use of medical marijuana, thus it limits employer actions w.r.t. hiring, firing, and on the job treatment. It is not an absolute prohibition. §2103(b)(3) states that Nothing in this act shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law. Since employers may be subject to federal drug-free workplace rules, detectable usage of medical marijuana is a fireable offense on such jobs, until the federal regulations are eliminated. The law is also clear that this does not create a right to be under the influence while on the job, and §510 lists definite prohibitions against actions while under the influence. As for the question of whether the law prohibits discrimination based on simple possession of a card but does not prohibit discrimination on the basis of actual use (leaving aside the preceding disclaimers), this has been decided in Palmiter v. Commonwealth Health Systems, Inc. – it's not just card-possession that is protected. Indeed, the hospital in this lawsuit did not contest the claim that the law protects employees who use medical marijuana, the dispute was over whether a cause of private action was created (can a fired employee sue? "Yes", says the court). See also Hudnell v. Thomas Jefferson Univ. Hosps. | Double Jeopardy does obviously not apply to being tried by the state and the federal court system, where you can be convicted for drug smuggling by both the Federal and the State court as you broke both laws with the same act. This is true, and the answer to your question comes in the reason this is true. The exception to double jeopardy you're referring to applies to charges from separate sovereigns. When considering whether two entities can both charge someone, you trace back each of them to the sovereign power that gives them their authority. States are considered sovereign, as are Indian tribes with respect to crimes committed by Indians (although for certain serious crimes like murder, Congress arguably stripped tribal courts of jurisdiction with the Major Crimes Act). The United States is of course sovereign. The military is not sovereign. Military charges are based on the sovereignty of the United States, so double jeopardy applies between military and civilian federal courts. Likewise, US territories (and DC) are not sovereign and have criminal jurisdiction based on the sovereignty of the United States, so territorial (and DC) charges are subject to double jeopardy with each other, with military charges, and with civilian federal charges. That said, double jeopardy only applies if the charges represent the same offense. The UCMJ has offenses with no civilian analog. If you're charged with murder in civilian federal court and mutiny under the UCMJ, those are two different crimes. | The general rule is that using force in self-defense is justified if the person using the force reasonably believes it immediately is necessary to prevent the unlawful use of force against themselves or a third party. Deadly force is not generally justified except in response to a reasonable fear of deadly force, or to prevent certain violent crimes (like rape, kidnapping, robbery, etc.) Force is not justified in retaliation. In some states, if you're not at home (or maybe even then), you also have a duty to retreat before you can use deadly force in self-defense. So, for your specific questions: If they hit you once but aren't continuing to hit you, it's illegal to hit them back. You can only use force to defend yourself, not to get even. If someone gets in your face without touching you, you might be allowed to use force, but it depends on the circumstances. You don't have to wait for someone to hit you, but you can't sucker-punch someone because you want more space in a mosh pit. Your use of force needs to be something you reasonably believe to be necessary to stop/prevent their unlawful use of force. It also needs to be proportional to the force you're defending against; you can meet deadly force with deadly force, but shooting someone to stop them from slapping you is murder. Likewise, no one's going to believe that you really thought you had to beat the crap out of someone in order to stop them from slapping you, or that it's in any way proportionate to what they did. Deadly force is not allowed in defense of a person unless you reasonably think deadly force is needed to prevent the unlawful use of deadly force, or to prevent one of a few crimes being committed against them. Depending on the state, it might be presumptively justified if the person is trying to forcibly break into your occupied house, car, or place of business, but that's state-dependent. | None of the factors you list about Charlie committing a crime, about to commit a crime* or being responsible for the officer's injury apply to whether or not Bob can shoot Charlie on behalf of the officer. On the other hand, if Charlie's actions lead Bob to the reasonable belief that Charlie represents an imminent threat of death or grave bodily injury to anyone then Bob will be justified in using force, including deadly force, to stop Charlie. I'm aware of many states that also allow the use of deadly force to prevent the imminent commission of a forcible felony. A normal citizen can go to great lengths to assist the police and stories of citizens coming to the aid of police officers are easily found. There may be some reason the police officer felt the need to use deadly force against Charlie. Bob will need to make his own determination based on all the factors available to him, which may include communication from the officer. If Bob decides to shoot Charlie then an investigation will center on whether it was reasonable for Bob to deduce that the use of deadly force was justified given the information available to Bob at the time. Some states have laws that penalize refusal to aid a police officer. A list of them can be found on this wikipedia page. Notably, California just repealed their statute requiring assistance. *The statutes of some states allow the use of deadly force to prevent the commission of felonies, typically forcible felonies. However, just because a crime is listed as a forcible felony doesn't always mean that deadly force can be used to stop the crime. An example comes from Florida where the statutes state that deadly force can be used to stop forcible felonies, the statutes also define burglary as a forcible felony. However, the courts have ruled that the use of such force is not reasonable where the structure being burglarized is unoccupied. |
Is it illegal to pay someone to hire me? How about receiving money in exchange for hiring someone? Is it illegal to pay someone to hire me? How about receiving money in exchange for hiring someone? Does this fall under criminal charges, and would it be considered bribery? In this hypothetical situation, this occurs in a private company. For example, suppose I pay someone to hire my son in their engineering firm. Are there any U.S. laws that would prevent me from doing so? To the best of my knowledge, only New York explicitly prohibits this type of action, which would be considered commercial bribery, but I'm not entirely sure. | These are both bribery Bribery is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official, or other person, in charge of a public or legal duty. The crime exists in the common law even if it is not codified by statute in a particular jurisdiction. If the person you pay to hire your son is under a legal duty to the employer (e.g. is an employee or agent) then what you are both engaging in is bribery. However, if the person you pay is the employer (i.e. if the "engineering firm" is a company then the payment is made to that company) then the payment is not bribery. However, if the payment is made by or behalf of an employee (as it almost certainly is) then it is likely (almost certain) that the payment breaches employment law because, broadly speaking, employers are not entitled to payment from employees - the money has to flow the other way. | If you want to protect yourself or any property interests you may have in this circumstance you have to talk to a lawyer. You cannot get (or trust) legal advice from the internet. I will, however, make the following personal observations: I only provide a W-9 to people who are paying me money, and who request it as a condition of paying me. I don't know of a legal requirement to supply it after the fact. However, not providing it to someone who did pay you more than $600 in a tax year could certainly make it difficult for them to comply with their tax filing obligations. I do not sign any agreements, assignments, or contracts, without what I consider to be fair consideration. E.g., if on leaving a job (as has happened) I am asked by a former employer to sign something that I am not already obligated to sign due to some prior contract, then I negotiate what is commonly called a "severance package." They pay me and/or extend benefits, and I sign something that limits their liability. | Under United States law, copyright is normally held by the creator of a work. There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is. If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be. If you're in a situation where you need to know, for example: That you are allowed to use the artwork forever, and the artist can't ask you to stop later; That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you; then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about. Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be. tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them). | Such clauses are called "copyright assignment", "invention assignment", and/or "works for hire" clauses, partly depending on the clause's intent and wording. They're pretty common in employment contracts for software development and some creative positions. Frankly, the clauses don't actually do much, at least in the US -- copyright law already recognizes the concept of works made for hire (which belong to the employer), and claims too far beyond that are often rejected if they aren't obviously related to company business. With that said, your hypothetical programmer's painting is safe unless it depicts, say, the contents of an email from the CEO. :) Even if the clause technically entitles the employer to claim ownership, the employer has no legitimate interest in doing so. Likewise, that app created outside work is safe as long as it is created using no company resources and is unrelated to the employer's business. If the app is obviously related, that's where things get hairy. | No Any conduct that demands someone does something unlawfully is unlawful. Taxes are laws and regulations. Not paying the taxes is unlawful, especially under 26 USC 7201. So the shareholders are not only demanding the company to break laws, they aid and abett such behavior, making them also liable together with the company as there is 18 USC 2: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. It could also be inciting to violate laws. It is not a shareholder's right to ask for someone to break the law. | Assuming that the above can be established by admissible evidence, that sounds like a case for first degree murder, and probably various other crimes as well. In some jurisdictions there is a specific crime of "Murder for hire" which might also apply if available on the jurisdiction where this occurred. A comment mentions a possible insanity defense. That is going to depend on detailed facts not included in the question, but might be possible. | 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. | Given that the purpose of the bonus is to incentivize you to stay, and you are willing to do that, I see no reason why you shouldn't keep the signing bonus if you are fired. While this is not totally without ambiguity, it is at least a fair reading of the statement that a pay back applies only to a voluntary departure, and ambiguities are generally interpreted against the drafter. Also, keeping the signing bonus compensates you for having to start up at a new job only to have it promptly dissipate. |
Will be asked to come back to work - wife cannot due to children Due to COVID-19 all schools were closed (At least here in MI - I am certain everywhere). My wife's work is starting to ask when she will return. Unfortunately she has to become our 3 daughter's teacher - at least until the end of June. Our schools are participating in Remote School (Schoology) and the student's pass or fail depends on their attendance. We have a small pre-k and kindergartner as well as a ten year old, we aren't talking about self sufficient teens here - these kids are young. In any event I know if an employee refuses to go back to work they can be terminated and lose unemployment benefits. However, I have also read that parents who have kids are entitled to unemployment during these rough times due to COVID-19 and remote school. If my wife comes into contact with someone who has these symptoms she could easily bring it home - not ideal. How can we maintain unemployment benefits at least until the end of June without having the fear of losing both employment at her job and unemployment benefits? | According to the Michigan Dept. of Labor & Economic Opportunity, there are expanded eligibility criteria for unemployment insurance during the COVID-19 crisis. This expansion of unemployment benefits was part of the Federal CARES Act passed in late March. These expanded criteria may cover your wife: Individuals are eligible for PUA [Pandemic Unemployment Assistance] if they do not qualify for regular UI benefits (including self-employed workers and independent contractors) and cannot work because they: Are diagnosed COVID-19 or have COVID-19 symptoms and are seeking diagnosis; Have a member of the household who is diagnosed with COVID-19; Are providing care for a family or household member diagnosed with COVID-19; Are the primary caregiver for a child whose school or care facility closed, due to COVID-19; Are unable to reach their place of employment due to an imposed quarantine, or because advised by medical provider to self-quarantine, due to COVID-19; Were scheduled to start new employment and cannot reach the workplace as direct result of COVID-19; Became the major breadwinner because the head of household died from COVID-19; Quit their job as a direct result of COVID-19; Had their place of employment closed as a direct result of COVID-19; or Meet any additional criteria specified by U.S. Secretary of Labor. Individuals are not eligible for PUA if they can telework or are receiving paid sick leave or other paid leave benefits (regardless of meeting a category listed above). According to this fact sheet, you can apply for PUA if you are denied regular benefits: When and How to File for PUA New claimants or claimants who have been denied regular state unemployment benefits (as of January 27, 2020) may apply online using the PUA application available in the Michigan Web Account Manager (MiWAM) at michigan.gov/uia. | 34 CFR Subpart D covers this topic ("Under what conditions is prior consent not required to disclose information?"). This includes The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests so that raises the question of whether there is a legitimate educational interest. Additionally, the question is raised as to the status of an SRO (they are not teachers). Disclosure is allowed to A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided... the conditions being that the person Performs an institutional service or function for which the agency or institution would otherwise use employees; Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records I would take this model memorandum as the most likely agreement, though your district may have a totally different memo where SROs are purely security guards. An SRO is to advance the program objective which include "Education of children regarding the role of laws, courts, and Police in society", which is the hook into "legitimate educational interest". This nothwitstanding the part that says that they "are police officers and not school teachers, school administrators, nor school counselors. The officers will assist teachers with classroom presentations on relative topics when requested and able" (there is no principle that only teachers, administrators, or counselors can have a legitimate educational interest). This model memo does not say anything that indicates that the conditions "Is under the direct control" and "Is subject to the requirements of §99.33(a)" are true, but those conditions could be satisfied external to the MOU. There are some additional exceptions of the "if required by law" type, such as a state law "adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released"; or, after that date, is "subject to the requirements of §99.38" which refers you to §99.31(a)(5)(i)(B). If that is confusing, here are the two self-referring sections: §99.38(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B). §99.31(a)(5)(i)(B). The disclosure is to State and local officials or authorities to whom this information is specifically...Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38. So state law is one possibility; "legitimate educational interest" is a remote possiblity. Massachussetts law does include governmental third party disclosures: 603 CMR 23.07(4)(c) A school may release information regarding a student upon receipt of a request from the Department of Social Services, a probation officer, a justice of any court, or the Department of Youth Services under the provisions of M.G.L. c. 119, sections 51B, 57, 69 and 69A respectively. That does not directly apply to local police, but it is possible that a police officer is operating as a probation officer or an agent of the Department of Youth Services. Under paragraph (e), A school may disclose information regarding a student to appropriate parties in connection with a health or safety emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. This includes, but is not limited to, disclosures to the local police department Mass. law allows the possibility of treating a police officer as "authorized school personnel" if they are "providing services to the student under an agreement between the school committee and a service provider, and who are working directly with the student in an administrative, teaching counseling, and/or diagnostic capacity" – which is not completely out of the question but is a bit of a stretch (especially in the context of a blanket statement "we share records", not "we may share yours, if you get special counseling"). Tne law also says "Any such personnel who are not employed directly by the school committee shall have access only to the student record information that is required for them to perform their duties", so sharing of all records would not be allowed. | Are the reasons (mom can't stay because of covid-19 and the son is too young to live by himself) legally justifiable reasons? Unfortunately, not in this case. The landlord can prevail by arguing that the mom, insofar as a holder of a non-immigrant visa, knew or should have known of the risks of being denied entry in the US. In terms of the Restatement (Second) of Contracts at § 154 (a) & (b), the mom is the "Party [who] Bears the Risk of a Mistake". Since the risks of which the mom was aware include even arbitrary ones such as the USCIS officer's discretion, an allegation of "supervening circumstances" as per the coronavirus crisis is very unlikely to add any merit to the mom's legal position. Is the 8 months compensate reasonable? Although this is admittedly subjective, at first glance it appears reasonable or perhaps even generous (the landlord is proposing the midpoint: half of the remaining 16 months) considering that the landlord is entitled to the completion of the lease. The "8 months as compensation" is essentially the landlord's proposal to settle his otherwise viable claim of breach of contract. You as lease holders can always attempt to negotiate and make alternative proposals, which is what you are doing already. Here, the landlord seeks to obviate court proceedings that can be a drag for both him and especially for the mom because she would be unable even to present her arguments in court and/or quasi-judicial proceedings. A settlement would benefit the landlord also from the standpoint that he would no longer be required to prove mitigation of damages (if that is a requirement in his jurisdiction). And, unless the settlement provides otherwise, the landlord would be free to immediately re-rent the unit without having to reimburse the mom (or the person(s) whose name is in the lease). That being said, it is important for the lease holder(s) to secure in writing (specifically in the settlement document) a statement from the landlord in the sense that, by virtue of the agreed compensation, the landlord waives any and all claims related to the early termination of the lease. It is always smart to be cautious and preclude the landlord from eventually bringing a claim alleging that the agreed compensation was for something else or that it did not fully settle the controversy(-ies). | 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. | Could the Federal government say that if you are not vaccinated against Covid then you lose your welfare benefits? Would it be constitutional? What I am asking is, would a federal law (passed by congress) requiring people on welfare to be vaccinated be constitutional? For the most part yes. Arguably, a religious exemption might be required. But the federal government absent other countervailing considerations, generally has the power to mandate vaccination and other responses to a contiguous disease in cases where the vaccination would affect interstate commerce. All manner of things can be established as conditions to federal spending and federal programs. In cases where the program is purely federal, that discretion is almost unlimited (except for individual liberty considerations like freedom of religion). In cases where state cooperation is required, as noted in the answer by user6726, this discretion isn't absolutely unbounded if the state objects. | In the US, your recourse is the school board that governs your high school. Talk to them and find out how to bring the situation to their attention. There will be some sort of complaint or grievance process you can participate in. The school board is bound by state (and federal law), but makes many decisions for the school, among them employee policies and standards for teacher qualifications. Yes, there are possible legal actions you could take, but the first step is the school board. The school board will be obligated to tell you the hiring process and how qualifications play a role. But be aware that they have the option to hire temporary teachers who are not fully certified in order to fill vacancies; it's a common practice when the demand for teachers is much higher than their availability. There is little that is illegal about it, unless the board broke their own rules or state or federal law. | Parents have a legal obligation to care for their minor children: it is illegal to harm a child through action or inaction. State law and associated welfare programs are complex: you can start here. If surgery is medically necessary, her insurance should cover it. If her parent do not have medical insurance, they still have the obligation of care; though various governmental programs may alleviate the problem, such as the state medical assistance program. The parents may therefore be in violation of the law, and anyone may report this to DSHS (specifically through Child Protective Services). This obligation terminates when the child turns 18 (assuming that someone does not petition for adult guardianship). Legislation is not crystal clear as far as what constitutes "injury of a child ...under circumstances which cause harm to the child's health". CPS has no authority to compel parents to pay for a medical treatment, but they can go to the courts on behalf of the child. At that point, it's hard to say what the court would order. For example, if the parents are capable of providing medical insurance and just willfully chose to not cover their child, the court could order them to get insurance. It is virtually guaranteed that the courts would not order the immediate amputation of the child's feet, and there would be no legal basis for ordering the parents to pay for the procedure in a decade, after the child is an adult. However, if you are suggesting that there is an immediate treatment (which the parents have opted to not provide, hence the prospects of later amputation), then it is reasonably likely that the courts would order the parents to provide for the treatment (if it would be possible for them; otherwise, the state may intervene and provide for the treatment). | Imputed income is a legitimate concept, but it is hard to prove, particularly when there is an earning history to back up the claim that there is no malingering. Ultimately, the question is what that particular individual could earn and whether that particular individual was intentionally being lazy in order to influence child support. At a minimum an earnings history and testimony from Mary would be strong evidence disproving the claim, and it would probably take expert testimony to make any kind of credible claim that more income should be imputed that would still be unlikely to succeed. If more money were at stake, a battle of the experts with experts on each side with one testifying that Mary could earn more and the other debunking that expert's testimony, would be appropriate. But, for $300 a month at issue, it probably doesn't make economic sense for either party to hire any kind of expert. And, a judge is usually going to take some random statistical study much less seriously than a history of earnings and testimony from the franchise owner about why it earned more or less than average. |
Could the Intel CEO be accused of insider trading? A few weeks back, the Intel CEO sold all the company shares he was allowed to. Yesterday, it was reported that a big security flaw existed in virtually all Intel processors sold in the last decade. Intel has known about it for several months and has informed the OS vendors so they could publish patches before the vulnerability was made public, as is the custom in these cases. This looks to my non-lawyer eyes like blatant insider trading. Is it? | The accusation would be the crime of securities fraud ("insider trading" is legally meaningless), under 15 USC 78j(b). There is a bit more elaboration in 17 CFR 240.10b5-1. That law prohibits using "any manipulative or deceptive device or contrivance in" in connection with a securities transaction. Under 15 USC 78ff, violation of the law can result in a fine of up to $5 million and 20 years, thus it is a crime. As a crime, the standard of proof required is must higher than it in for a civil forfeiture (which can be as low as "reasonable suspicion"). In the US, and pursuant to the Due Process clause, that requires proof beyond a reasonable doubt, that is (from in re Winship), "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged". The statute itself does not state the elements that must be proven to secure a conviction, but they can be discerned based on jury instructions (which are circuit-specific). The 9th Circuit instruction is here. You can see that there are 4 specific allegations that have to be chosen between, and the prosecutor has to have at least alleged one of those prohibited acts (so that the jury can decide if the prosecution has proven beyond a reasonable doubt that the accused did that thing). The evidence you have presented could constitute "reasonable suspicion", but not "proof beyond a reasonable doubt". If we had a different standard of proof in criminal trials, where it was sufficient to just suspect based on a small bit of evidence that a person may have done something prohibited, then the conclusion could be different. Or, if you had stronger evidence surrounding the sale, your argument might carry a bit more weight. In other words, criminal prosecution is based on quite a lot of specific and objective evidence about what happened. An example of the kind of evidence and allegations required to get the ball rolling can be seen here; for "insider trading" specifically, look here (this case is based on an FBI investigation, where an agent will presumably testify to hearing the defendant state a plan to violate the law). | There is no law in the US that says you must tell the truth on the internet. Some places where one must tell the truth are: When speaking to police, the FBI, and most government agencies When filing your taxes with the IRS In certain business contracts When testifying before Congress But on the internet, you can claim to be the first man on the moon with impunity. If someone is gullible enough to believe you and send you money, that is their fault and responsibility. As far as eating a Pangolin, why should she "admit" it, when it was documented on Instagram? There is no duty to officially apologize for it. You can try to report her to the US Fish and Wildlife Service, which enforces the Endangered Species Act, but as it occurred outside the USA, they will be powerless. Her claims are dubious, and possibly incorrect. Her treatment of an endangered animal is reprehensible. However, you posted this to a law site, asking about "reporting it" (to some sort of authority), and tagged it "criminal law". Her behavior is troubling, but I don't see anything that is remotely illegal or criminal. | The companies really need to speak to an IP lawyer as this question is seeking specific advice which this site is loathe to give out for fear of compouding issues. The answer would depend on the license agreements and enforceability in various jurisdictions. According to https://social.msdn.microsoft.com/Forums/vstudio/en-US/0368d7ee-0eb3-4e3e-a143-4410969a15bb/eula-for-vs2010?forum=vssetup Microsoft says you cant rent out the software - but this applies to the "Pro" version - I could not find anything on the "Premium" version - so most likely Microsoft to have some clam. The flipside is how enforceable this EULA is - and this would probably vary from jurisdiction to jurisdiction. It would be a very, very good idea to speak to a lawyer before letting Microsoft come onto the premises - as "inviting them" to do this is almost certainly not going to improve the Asians company's case and will allow Microsoft to go fishing further and make it easier for them to expand on and collect evidence should they decide to pursue the matter. | The FCC has clarified their stance on this: ... were we mandating wholesale blocking of Open Source firmware modifications? We were not, but we agree that the guidance we provide to manufacturers must be crystal-clear to avoid confusion. So, today we released a revision to that guidance to clarify that our instructions were narrowly-focused on modifications that would take a device out of compliance. The revised guidance now more accurately reflects our intent in both the U-NII rules as well as our current rulemaking, and we hope it serves as a guidepost for the rules as we move from proposal to adoption. Essentially, Open Source firmware modifications are allowed, the modifications are disallowed are things like excessively increasing signal strength. | 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. | You should probably get a lawyer, but my reading is this: The company whose SDK you use owns their SDK, owns their code, and is free to take any of your ideas how to improve their code without paying you. But they say that ideas are ten a penny, so this is mostly there to prevent pointless lawsuits. On the other hand, it says that everything you do with your product is yours. I might be completely wrong, that's why you should get a lawyer. | However, this uses the text "rights in an invention"; does that cover copyright? Yes. (Is this the correct law?) It certainly seems to be. Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does? Imagine that you work for a company that writes trading software. In your spare time, you develop a photo editing tool. Do you think a court would find that your project "related to the employer's business"? I do not. Or does my employer own copyright on everything down to the love letters I write? Google does not own everything their employees create; they only claim to. If someone challenged them on it, a court would decide, and probably not in their favor. | The essential parts of a trade secret are that (a) it is something that you keep secret, and (b) something that gives you an advantage in trade because you know it and others don't. A trade secret remains a trade secret if you give it to someone else under a non-disclosure agreement. If it is available where anyone can download it, either intentionally or by carelessness, then it isn't a trade secret anymore (as soon as it actually gets downloaded). If it gets made public through some illegal activity, well, that's too complicated for me. Anyway, YOU don't have to pretend anything. A claim that something is a trade secret doesn't make it one. And if something is a trade secret, no claim about it is necessary. If you download the software without doing anything illegal then it isn't a trade secret. To reply to the comment: If the sequence of events is this: I download the source code. I read the license. The license says "by using the software ..." then clearly I have the source code before using the software. At that point the trade secret status is lost. We don't need to discuss whether the license would have been enforcible, because the software is already downloaded before the license starts applying. I can tell anyone in the world about it. (I can't give the software to anyone, because that is copyright infringement, a totally different matter). |
Can you refuse to rent to students in Texas? I was recently looking for a new place to rent in Richardson, TX when one of the places I had contacted took me by surprise by opening with “no students” amongst a few other requirements. Is this legal? A little context might help: the property is a single family suburban home, with a normal income requirement of 3x yearly rent which is $85,000. So, if a student is earning that amount, wouldn’t this be illegal to refuse them, as it seems to be based on something like age discrimination (under the same rules that you can’t refuse ‘people who wear dresses’ under gender discrimination rules)? | Yes, this is legal, unless Richardson, TX has a specific local law making it illegal. In the US, discrimination is legal, unless it discriminates against one or more specific enumerated classes. Under federal law, and as far as I am aware, Texas law, students are NOT a protected class. As such discrimination against them is legal, unless Richardson, TX or its incorporating county have a specific law or regulation prohibiting it. Incidentally, age is generally not a protected class, and when it is a protected class, it is generally only illegal to discriminate against people above a specified age, not below. Note that discrimination happens all the time, over a variety of factors, that many people don't even consider discrimination. For example, many colleges and universities discriminate on the basis of GPAs for acceptance to various programs; this is legal. In the past, many colleges and universities discriminated against potential students on the basis of sex or race, which is now illegal. | Non-residential tenancies are subject to Fla. Stat Ch. 83 Part I. This is statutorily a tenancy at-will unless a contrary agreement is in writing signed by the lessor: the duration of the lease is yearly, quarterly, monthly, weekly as determined by the periodicity of rent payments. There are various legal conditions related to rent default and causes for removing tenants, also conditions about premises that are wholly untenantable. Unlike residential leases, there are not any special statutory conditions surrounding the landlords presentation of leases. Florida law contemplates and allows the possibility that there are no written documents, and for non-residential tenancies has very little to say about it (only pertaining to the distinction between at-will vs not at-will leases). Therefore, the matter follows the general rules for contractual disputes: whoever makes the best case for their claims wins. If Bob has a scanned copy, that is excellent proof. If Alice alleges and proves that the scanned copy was modified, that disposes of Bob's evidence. If Alice presents a copy of the contract that says otherwise (I do mean copy), then this anomaly has to be explained. Bob can claim that they tore up Alice's original and renegotiated the deal, but he needs to prove that claim. If Alice presents the original contract, Bob's story becomes much less plausible. There are millions of variants of what might happen: the point is, there is no requirement to present the original signed document to support a claim in a contractual dispute. | Call, write, or visit the office of your legislative representative. This page can help you figure out who that is. They have the ability to introduce a bill into the legislature that would change the law, and that's the best way to change a law like what you're trying to do here. Be sure to tell the legislator exactly what you think should be changed (e.g. "We should change section ABC of the Texas Property Code, < citation>, to say that 'no landlord can charge a fee of more than X for Y in Z conditions,' or something similar.") Then concisely summarize your reasons why. Consider consulting politics for more strategy on who and how to ask to increase the probability of success. Be sure to give some consideration to the reason why the landlords charge such fees and the costs they have to incur associated with lease assignments/changes. Try to craft a proposal that addresses those concerns, perhaps in some alternative way, and communicate the degree to which you think you understand and have addressed those opposing views. Also try to think about what new challenges or issues would arise if your proposal went into the law. The job of your representative and/or their staff includes listening to (a concise presentation of) your concerns and how you think the law should be changed, and representing those views in the legislature. S/he also has other constituents, including landlords, to answer to as well, and has to balance those potentially opposing interests before deciding what (if anything) to do. The degree to which you think the representative listens and represents your interests may determine whose campaign you support (including who you vote for and what you say to your friends/neighbors/family) in the next election. Another strategy is to negotiate with your next landlord to take those fees out of your lease agreement, and then the contract which governs your specific agreement might be changed to address this concern. If you want to change the law for everybody, you might have to convince a lot of people that it's a good idea. If you want to change the "law" for what affects you personally, you might only have to convince one person (your own landlord) that such a change is a good idea, at least in your case. | 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. | In the US at least, discrimination is legal (and sometimes even required) unless it is discrimination against specific, protected characteristics, and even then it is sometimes allowable if it is "necessary". Income, whether of an individual or that individual's family, is not in any list of protected characteristics. As such, discrimination upon it is fully legal. | 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). | It is legal, at least in the US, for a store (or other entity) to refuse to sell any item to any individual for any non-prohibited reason (prohibited reasons are typically things like race or religion). More over, in various US jurisdictions, it is prohibited to "furnish" alcohol to a "minor" (for example, under California's ABC law), which can be interpreted as prohibiting to an adult if they reasonably suspect that adult will pass the alcohol onto the "minor". This is to prevent "straw" sales. Additionally, larger chains generally prefer to have harmonized policies across branches, and where practical, across state lines, so will have policies that can accomodate multiple alcohol control regimes. | No The criteria for adverse possession is that you have to be in possession without permission. A tenant, even one that pays no rent (or stops paying rent), has permission. |
Avoiding the appearance of insider trading Can one conceivably be accused of insider trading without being considered an insider at the company you work for? Is that classification by your company more just a way of categorizing employees and protecting them from themselves (with the insider black-out periods) or is it basically impossible for someone who isn't classified as such to be accused? My personal scenario is I am NOT on the insider list. But I do work in some capacity with Finance. I make a lot of trades of our own stock and am usually successful at buying low and selling high / I think I'm mostly lucky. Example: Right after Brexit I bought all the stock I could afford cause it tanked and I saw no logical reason why it should. Like most companies, it went back up later - yeah! | In the US, "insider trading" includes both legal and illegal versions. When a corporate employee buys or sells shares of their company, they are insiders and they are trading (there is a requirement to report to the government). The illegal version involves breach of fiduciary duty or confidence. The relevant section of the federal regulations is 17 CFR 240.10b on "Manipulative and Deceptive Devices and Contrivances", and you will note that the section does not rely on the term "insider" in the law part, instead it directly characterizes what acts are illegal. Thus it would not matter, from a legal perspective, if someone considers you an insider. It is illegal to trade in securities using a “manipulative, deceptive, or other fraudulent device or contrivance”. This relates to what is commonly known as insider trading via rule 240.10b5-1, by defining as manipulative and deceptive trading on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information (emphasis added to focus on the core requirements). Whether or not you have a "duty of trust or confidence" is determined by common law standards, that is, it depends on how courts have ruled on similar matters. For instance if the CEO of Apple tells you "Our computers explode and it's gonna be on the news tonight, the stock is gonna tank, but it would be illegal for you to act on that information", then it would be illegal, because you are aware that the CEO has a duty to not use that information (thus you "inherit" the duty). This also holds if he doesn't tell you that acting on the information, since it is expected that you know that the CEO of Apple could not legally act on that information (even if in fact you are unaware of the law -- ignorance of the law doesn't get you anywhere good). However, if you are unaware and could not know that the person making the factual disclosure is divulging information that he has a duty to shut up about, then you might not get prosecuted. | This is neither unusual nor illegal, assuming that the buyback price is specified in the agreement. If your friend does not wish to take advantage of the "nice discount" he can decline the deal, and decide for himself whether he wishes to buy shares without restriction, at the market rate. (It would be interesting to know what happens if he sells his shares and then leaves the company. I am fairly sure the agreement will cover this, but requiring an ex-employee to buy shares and then give them to the company could be considered unconscionable. That might be worth asking a lawyer about). | The line they'll rely on for GDPR compliance is the first part of that sentence - "If you agree to this during the order process", which suggests that there will be a separate request to opt in to marketing communications at some other time in the process. Check any order documents. There's likely to be a tick box or similar on at least one. If that implies opting out rather than opting in there may be grounds to argue with that under GDPR, but there's nothing in the quoted text that suggests a problem. | An employee is an agent of the employer when working and owes a duty of loyalty to the employer. One of the obligations associated with a duty of loyalty is to refrain from receiving anything other than the employer authorized compensation for the work, rather than benefitting personally from work done on behalf of the employer. By appropriating additional benefit from the customer in a way that is unauthorized by the employer (the employer would be within its rights to sanction and authorize this conduct if desired), an employee who does not turn the profit in this transaction over to the employer has breached a fiduciary duty to the employer for which the employer would have a right to sue the employee for the amount by which the employee was unjustly enriched in the transaction. Would it actually play out this way in real life for these sums of money? Probably not. The stakes involved wouldn't justify the time and money of a lawsuit. But, breaching a fiduciary duty of loyalty to your employer in this context probably constitutes good cause to terminate the employment of the employee without paying severance that would otherwise be payable under Canadian employment law (in theory anyway, I've never seen a reported court case on point). | When does a CEO (or the investor or the board) have to notify employees they will be unable to pay them for work already done? Directors and officers (which includes executive officers like the CEO) but not investors have a duty to ensure that the corporation does not trade while insolvent. In this context, "trading" means incurring new debts and "insolvent" means being unable to pay their debts as and when they fall due. Unfortunately, it is a judgment call by those directors and officers and the exact point where it occurred is generally only clear with hindsight, if then. For example, you describe a "tumultuous week"; quite likely the company was urgently seeking additional sources of funds and until it was clear they had no prospect of getting those, they weren't insolvent. The director's duty is to act reasonably (a broad range of activities) and not be overly pessimistic nor optimistic about the company's prospects. As far as I know, they don't have a positive duty to inform their creditors that they can't pay. If that happens their obligation is to file for bankruptcy and their obligations cease - the bankruptcy trustee then invites creditors to prove their debts. Does an investor have a responsibility to ensure all employees are paid? No. That is pretty much the purpose of limited liability corporations: to shield the investor from the debts of the company. Do the employees have any recourse? Yes. Employees are typically priority creditors in Colorado and rank ahead of many other creditors. However, if the company is not based in Colorado different laws will apply. Of course, you must be an employee of the company - this priority doesn't apply to true independent contractors. Also, the liquidator's fees rank ahead of anyone and unless the bankrupt company has adequate realizable assets, even employees are unlikely to get a dividend. You also need to be clear who you work for as you say "that last Friday was paid for/fronted by the HR company". Do you work for the bankrupt company or this (non-bankrupt) HR company? If the latter then they owe you your wages and the bankruptcy of their principal is their problem, not yours. Is "secured debt" real? And does that reduce the likelihood of receiving a paycheck in a bankruptcy settlement? Yes. There is a priority in the payment of creditors in liquidations and it varies by jurisdiction but a typical arrangement might go like: Liquidator's Fees Employee wages and entitlement accrued within the last 6 months Certain taxes Secured creditors (who may have a ranking among themselves) Unsecured creditors (including employee entitlements more than 12 months old, other taxes, trade creditors etc.) Shareholders (who may have a ranking among themselves) Basically, the lower you rank, the less likely you are to see a dividend. Does any of this change if the company doesn't file for bankruptcy? Sure. Until the company does this it is still a going concern and it has to pay its debts. If it doesn't it's creditors can sue and recover their monies as best they can which may include forcing the company into bankruptcy. | united-states Meet the word "clawback". The general rule is that anything you do simply for asset protection can be undone by the government or courts. See the excellent book by Adkisson and Riser titled Asset Protection. First, the creditor is going to ask about all your assets including transfers. You have to answer truthfully, or else you open a whole other can of worms. The creditor and court will look at the character of these transactions. Suppose you sell a Ferrari worth $200,000 appraised value, to your brother for $155,000. However, it was an open eBay auction. Plaintiffs review it, hoping to find it was a "vest pocket" sale rigged to be unappealing to anyone but family. Wrong: it was a competent and earnest listing, which did attract 12 stranger bidders, and 3 bidders took up your offer to let them inspect the car. And according to Ferrari brokers that price was realistic given the soft market. Your brother simply outbid them, for nostalgia reasons. You did get the money and did use it to settle with creditors. That sale will be considered legitimate, because there's extensive provenance held in reliable third party hands (eBay). You sell the Ferrari for $100 to your brother. The court will presume that you intend to buy the car back for $100 after your legal troubles have cleared. This sale will be declared invalid, the Ferrari clawed back, and the creditor will be able to target that asset. The same thing can happen if you are insolvent, expect to enter bankruptcy, and pay a creditor "out of turn". E.G. you settle your debt with the country club (so you can keep attending) before you pay your tax bill. The creditors, IRS or court can "claw back" that payment. That happened to my family's business once. Meet the word "Penalties". OK, so what does a dumb crook do? They lie about their assets. They testify "I crashed the Ferrari on the property, it was a basket case. I parted it out and chopped up the rest, threw it in the weekly trash week by week". And they can produce no documentation of any part sales. Meanwhile, plaintiff had already pulled DMV records and found it's currently registered... to the brother, with a DMV sale price of $100. They sent over a detective, who has pictures of it sitting in the brother's garage. And plaintiff gleefully maneuvered the dumb crook into a lie under oath. And now they face judicial punishment - including harsh fines, and jail for contempt of court or refusal to disclose. This bypasses the Fourth Amendment, so there is no trial for proof of guilt. But it's a government agency, not a private party All the moreso, then. Government has the right to bypass some of the rules for private parties - such as being able to do asset search, subpoena, or attach assets without filing a lawsuit. The IRS is probably the most experienced at pursuing asset hiders. They have "their own" Tax Court which does exclusively tax cases. | It’s not insider trading Insider trading refers to leveraging private information that you only know because of your “insider” position. Front running is using information that is publicly available, albeit for a fee. Buying information that anyone can buy is not insider trading. | Yes, it also applies. However, an employment implies they agree to having employment related data stored and processed (e.g., to be paid). When there are performance related bonuses in the contract, this will likely (but IANAL) imply they agree to performance data being collected and stored appropriately. Furthermore I would assume most of such data processing (such as knowing who is responsible for a certain change, who created a file, modified it etc.) falls into "legitimate interests" of the employer, as this information may be necessary for operations. I'd assume (still IANAL) that much of the consequence wrt. GDPR is the right to have your data erased. So a company should be prepared to remove such data when an employee leaves the company, e.g., by clearing the responsible person fields upon request. At least for data where there is no legal requirement to have such data provenance. But: consult your lawyer for a proper legal opinion! |
Is it legal to guide someone to suicide? The context here is a video game, which I won't name as it'd be a bit of a spoiler, but the relevant part of the plot is: The deuteragonist's boyfriend was guided and goaded to suicide by one of the antagonists, who gave full details on how to end his life, how to obtain the materials, etc, etc, etc. The story took place in England, but I'm looking for general viewpoints that would apply to multiple jurisdictions. The deuteragonist went on a quest of vengeance, rather than seeking legal recourse. My question is: Had she been able to positively identify the person who did this, would he have been able to be charged with a crime? Or alternatively, would she have been able to sue him in civil court? All the materials used were completely legal (I'm not 100% sure if the physics and chemistry actually work, but I'm not asking about that). There were significant difficulties in identifying the person behind the user name, which constitute a significant portion of the game's plot, but if there'd been anything definitely illegal happening, it would have been possible to bypass a lot of that via a subpoena to an ISP. But if what he did wasn't illegal, then the next question is: what is the legal status of a vengeance rampage against him? I suspect she may possibly have been opening herself up to some serious criminal charges. | In England and Wales, under section 2 of the Suicide Act 1961 (as amended by section 59 and Schedule 12 of the Coroners and Justice Act 2009) it's a criminal offence to do an act capable of encouraging or assisting someone to commit suicide. I think that applies to Scotland too, and there is similar law in Northern Ireland. Encouraging suicide is also a criminal offence in some other common law jurisdictions, e.g. in Australia. While in other common law jurisdictions, if there isn't such a law, the person might instead be prosecuted for manslaughter - or not at all. The minimum, maximum and recommended penalties may well differ between jurisdictions. I don't know what you mean by "vengeance rampage" but I'm not aware of any jurisdictions where it is lawful for a person to cause harm to someone for revenge. States tend to reserve for themselves a monopoly on the use of force. | Given that both parties have committed criminal offenses (the 'bad actor' is attempting fraud and the 'victim' has committed unauthorized access to a computer system), no court would hear a civil case between these parties. As a matter of public policy, criminals do not owe a duty of care to each other so no one can win this case. | There is no US law licensing journalists or people who report the news, or requiring such people to identify themselves by legal name. Nor can there be under the US First Amendment. There is also no law requiring a person to identify himself or herself by legal name online. Some sites, including Wikipedia, have policies against having multiple undisclosed user IDs for the same person, but that is a matter of the site's own rules, not a matter of law. Any US law mandating this would again run afoul of the First Amendment to the US Federal Constitution. This article on Anonymous Speech reviews and cites a number of US Supreme court cases on the subject of anonymity, mostly in political contexts. This article from the Electronic Frontier Foundation (EFF) discusses the same general subject. Both articles mention that The Federalist (analyzing and advocating for the then-unratified US Constitution) was originally published under the pseudonym "Publis". The EFF Article "Court Recognizes First Amendment Right to Anonymity Even After Speakers Lose Lawsuits" discusses the 6th Circuit case of Signature Management Team, LLC v. John Doe in which it was held that an anonymous blogger who lost a copyright infringement suit could nonetheless remain anonymous. This page apparently from a Harvard course, lists and briefly describes several cases on the same subject. In Doe v. Cahill, 884 A.2d 451 (Del. 2005) an elected official sued an online poster for defamation, and sought to force the ISP involved to disclose the poster's identity. The Delaware Supreme Court ruled against this, setting a standard offering greater protection for such anonymous online speech than previous cases had. This answer is very US-centric. Laws in other countries are different. The OP has not specified a country or jurisdiction. | An "inquisitorial" system is one where the Judge or Magistrate actively questions the accused and witnesses to attempt to determine the facts. The Judge may also determine, at least in part, what witnesses to call in what order. An "adversarial" system is one in which each side presents its case, and the judge acts as an umpire deciding on procedure, and possibly makes the final ruling (or directs a jury to do so) but is not actively involved in questioning witnesses or deciding what witnesses to call. I don't see anything which would prevent a common-law jurisdiction from establishing an "inquisitorial" system by statute except longstanding tradition, but as far as i know no such jurisdiction has ever had such a system in place for dealing with criminal matters. The informal procedures in some small claims courts do have judges more actively involved than in other courts. I think this is also true in some family courts as well. I think I have heard of some civil-law jurisdictions which use something like an adversary system, but i am not sure of that. Certainly a civil-law country could pass a law setting up such a system if it chose to. | DUI is a crime under Massachusetts law so Kurt would be prosecuted there by that state. Germany would offer consular assistance but this would not extend to preparing or paying for his defence. If convicted, and after serving his sentence, Germany and the USA would coordinate his deportation. The UK would offer consular assistance for the repatriation of Alice's body and for the participation of her family in the trial, again this would not extend to paying for it. They would not assist in any civil action Alice's family might take against Kurt in a Massachusetts court. While DUI is a crime in both Germany and the UK AFAIK they are not extraterritorial: that is the crime must be committed on their territory for them to prosecute it. Some crimes do have extraterritoriality but not DUI. Similarly, their courts would probably not hear a civil case because the correct venue is Massachusetts and they would probably entertain a motion to dismiss on that basis. Even if they did hear it, it would be heard under Massachusetts law. | Like many US legal questions, there is a Congressional Research Service report about this. It is not generally a violation of US law to do things in another country where the only connection with the US is that the offender is a US citizen. However, there are a number of general situations where the US has jurisdiction over federal crimes if either the victim or offender is a US citizen: if a place isn't within the jurisdiction of any country (e.g. Antarctica); a place used by a US government entity (like an embassy or airbase); crimes by American soldiers and those employed by or accompanying the military; etc. These are considered to be within the special maritime and territorial jurisdiction of the US. Other laws apply if they say so. For instance, any US national committing war crimes inside or outside the US can be punished under US law; ditto for treason. The Foreign Corrupt Practices Act makes it illegal for a US national to bribe a foreign official anywhere outside the US for business reasons (if it's inside the US, there are more requirements). For instance, you aren't allowed to pay kickbacks to a foreign government's acquisition officer to buy your product. The CRS report has more (it doesn't include the FCPA, but that appears to be an oversight). Note that extraterritorial jurisdiction doesn't just apply if the person is a US national. US laws can also confer it if the victim is a US national, if the offense has a significant US component, if it's directed towards the US, if it's in violation of international law and the offender later turns up in the US, etc. For your scenarios: Dual citizenship doesn't matter. A US citizen is a US citizen, and is required to obey all laws that apply to US citizens, unless those laws explicitly exempt dual citizens. A dual citizen isn't treated differently by the government; as far as the US government is concerned, their US citizenship is all that matters (except for certain specific purposes like security clearances). In Kawakita v. United States, a US-Japanese dual citizen was convicted of treason against the US for aiding Japan in WWII. Depends. Plenty of these laws have no requirement that anything related to the crime actually happen in the US; for sex tourism, the subsection about traveling in foreign commerce for the purposes of engaging in illicit sexual conduct is followed by a subsection about engaging in illicit sexual conduct in foreign places. "Travel with the purposes of X" or "with intent to X" means you must have intended to do X at the time you traveled, but most extraterritorial laws don't control travel with intent to X (they cover X directly). Depends on the law. Some laws (like child sex tourism) apply to any permanent resident of the US as well as any citizen. Some apply to anyone, because they're based on a conspiracy started in the US. Others apply just to US nationals; a noncitizen isn't bound by them (for instance, no one but a US national can be charged with treason against the US, for obvious reasons). Still others apply to anyone who later turns up in the US, even if that is literally the only connection between the US and the offense (this is basically reserved for crimes against international law, like genocide). | Hacking into a computer owned by someone else and accessing the data stored on it without permission is a misdemeanor according to StGB 202a (de|en). But only if it's successful. So a failed attempt isn't a misdemeanor yet. When you notice that someone might have committed a criminal offence (regardless of whether you are a victim or just a witness), then the usual procedure is to report it to the police. If they consider the crime serious enough to investigate, then they will request the identity from the ISP. But the copyright lawsuits which are filed in bulk by law firms working with media companies are not crime reports. They are civil lawsuits. A civil lawsuit is when someone had a tangible damage because of something someone else did, and now they want money in compensation. When there is no damage, then there is nothing to sue for. So when you want a judge to file an injunction to force an ISP to give them the identity of one of their users, then you would first have to explain to them how much financial damage you had because of that person and that this is enough damage to make it worth everyone's time. That might be quite challenging for nothing but a failed SSH login attempt. But it might be possible if a single person made so many login attempts that it incurred you non-negligible bandwidth cost or even caused a denial-of-service. | Murder is definined in Utah as: Murder is causing the death of another person under any of the following circumstances: ... Knowingly engaging in conduct which creates a grave risk of death to another person and under circumstances which evidence a depraved indifference to human life. It's not unreasonable to consider dropping 3,000,000 bouncy balls over a populated area as "depraved indifference", particularly if someone had asked/read the question and would therefore know the potential consequences. Whether the killer would be charged with murder or manslaughter depends on the exact circumstances. |
Notice period for rental contract for a shared flat In Germany, assume that Allice has a flat (either rented or owned, I think this does not matter) and lives in it herself. She decides to rent one room to Bob with an indefinite contract. My research so far yielded the following: If she rents the room to Bob mostly furnitured, then by default the termination period is two weeks to the end of the month. However, it is three months by default if she rents it to Bob without furniture. Is my understanding correct so far? Main question: In the latter case, is it possible to define a shorter termination period in the contract, say one month? Or is the legal default of three months always applicable and cannot be changed by contract? | If she rents the room to Bob mostly furnitured, then by default the termination period is two weeks to the end of the month. However, it is three months by default if she rents it to Bob without furniture. Is my understanding correct so far? This is covered in §573c BGB (the German civil code). By default the notice period is three months. (But is increased for the lessor (Alice) after 5 and 8 years.) For residential space that is only leased for temporary use, a shorter notice period may be agreed. (This applies e.g. to hotel rooms.) For residential space under §549(2)(2), notice of termination is allowed at the latest on the fifteenth day of a month to the end of that month. (This is almost, but not quite, 2 weeks.) Where §549(2)(2) describes: residential space that is part of the dwelling inhabited by the lessor himself and has largely to be furnished with furniture and fixtures by the lessor himself, provided that permission to use the residential space has not been given for permanent use to the lessee with his family or with persons with whom he maintains a joint household set up permanently. This seems to apply here since Alice and Bob are sharing the flat. is it possible to define a shorter termination period in the contract, say one month? Or is the legal default of three months always applicable and cannot be changed by contract? Per §573c (4), these notice periods are minimums: “An agreement deviating from subsections (1) or (3) to the disadvantage of the lessee is ineffective.” Thus, the rental contract could allow Bob to leave on a shorter notice period, but Alice can't kick out Bob with shorter notice period. Notice periods only matter when one party wants to terminate the contract against the interests of the other party. If both voluntarily agree that it's best to part ways, they can sign a termination agreement effective for some arbitrary date, no notice period required. | Landlord-tenant law is an area that is heavily statute-based, jurisdiction-dependent, and far from uniform across the country. A complex, specific, multi-part question like this one is not going to get a simple answer. In general, though, I can clear up some of the confusion with a quick example. Let's say you abandon your lease, but as you do so, you write a letter to the landlord saying: "While I won't be living there any more, my friend's band needs a place to practice. They have agreed to pay half my rent if you let them play there 4 nights a week. They'll be starting on Tuesday at 11 PM: please have a set of keys waiting for them at the front desk." The landlord does not give your friends the keys. They re-key and clean the apartment and rent it two months later. Are you going to stand up in court and argue, with a straight face, that you should only be liable for half the rent for those two months because of the landlord's "failure to mitigate"? Again, jurisdictions differ, but the duty to mitigate is not absolute. If the landlord could rent out a $1,000/month apartment for $5 a month, it doesn't have to do that, and you can't make the Court take $5 a month off their damages if they refuse to do so. Also, you seem to be confused about what subleasing is. A sublessor owes duties to you; you still owe the duty to your landlord to get the rent paid. A sublease is an agreement between you and a third party to pay you rent. It does not affect your relationship with the landlord at all, unless it's a breach of your agreement with the landlord or of local law protecting the landlord from unauthorized subleasing. | 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. | Conditions pertaining to cancellation of a contract are contained in the contract, that is there is no general "right to cancel a contract", apart from certain 3-day window rights in some jurisdictions. For example, Washington state has some specific cancellation laws, summarized here. If the contract does not allow for cancellation, then you can't cancel the contract. I assume that your contract does have a cancellation clause: then you could have to see what that clause actually states. As it turns out, Florida has a law (Fla Stat. 501.017) which regulates health studio (gym) contracts, requiring certain clauses above the signature box. One required clause per (1)(b)2 is that notice of intent to cancel by the buyer shall be given in writing to the health studio. However, If the health studio wishes to enforce the contract after receipt of the notice, it may request the department to determine the sufficiency of the notice. This means that if they want to enforce the contract after a cancellation, they may request "the department" (Department of Agriculture and Consumer Services) to rule whether the notice was according to the contract (as mandated by law). It will also contain under (1)(d) A provision for the cancellation of the contract if the buyer dies or becomes physically unable to avail himself or herself of a substantial portion of those services which he or she used from the commencement of the contract until the time of disability, with refund of funds paid or accepted in payment of the contract in an amount computed by dividing the contract price by the number of weeks in the contract term and multiplying the result by the number of weeks remaining in the contract term. The contract may require a buyer or the buyer’s estate seeking relief under this paragraph to provide proof of disability or death. A physical disability sufficient to warrant cancellation of the contract by the buyer is established if the buyer furnishes to the health studio a certification of such disability by a physician licensed under chapter 458, chapter 459, chapter 460, or chapter 461 to the extent the diagnosis or treatment of the disability is within the physician’s scope of practice. A refund shall be issued within 30 days after receipt of the notice of cancellation made pursuant to this paragraph. It appears, then, that you simply need to give notice in the correct form (written, with a doctor's notice). In case the club does not have the required provisions in the contract, the contract violates state law and is unenforceable. | If you are prevented from entering the property on the day the contract says the tenancy begins that is a breach of the contract. If you suffer a loss as a result of the breach, you are entitled to be restored to the position you'd be in had the loss not occurred. For example, if you had additional removal fees and a hotel bill resulting from this breach, you'd be entitled to claim those costs. Generally the landlord would be liable for this. It is no defence that the agent is unavailable to give you the keys - they should have accounted for the day being a Sunday or started the term on a day when someone would be available. I suggest getting in touch with the landlord in the first instance, civilly explain the situation and ask if they can arrange for you to enter the property on the given date - they might not know what is going on. Keep a log/diary of your communications with the agent and the landlord. Make sure you have a plan B for somewhere to stay. Call Shelter too, for free advice. | All that matters is whether the tenancy falls within the statutory definition contained in the Housing Act 1988. Assured shorthold tenancies are subsets of assured tenancies, so first we need to look at the latter. 1. Is the tenancy an assured tenancy? Section 1(1)(a): tenant(s) must be individual(s). Section 1(1)(b): at least one of the tenants must occupy the dwelling-house as their only or principal home. Section 1(1)(c): the tenancy must not be excluded by in Section 1(2) or 1(6). Section 1(2) in turn refers to Part 1 of Schedule 1 which contains a list of exceptions. They are quite detailed but, briefly, the following are excluded: tenancies with high rateable values, tenancies at very low rents, business tenancies, licenced premises, agricultural tenancies, student accommodation provided by universities etc., holiday lets, tenancies with resident landlords, crown tenancies, some local authority lets. 2. Is the assured tenancy an assured shorthold tenancy? Section 19A: the tenancy must either have come into existence after Section 96 of the Housing Act 1996 came into force (the vast majority of cases) or it falls under Section 20. Section 19A: the tenancy does not fall within one of the exceptions in Schedule 2A. Turning to your scenarios: Tim rents an entire flat or alternatively a single bedroom through Airbnb for a week. (The landlord doesn't live in the same house.) Is he an AST? Not an AST; excluded by Schedule 1 as a holiday let. Suppose he rents it for a month, or two months. At what point does he become an AST with corresponding PFE? As long as it is a holiday let, it will not be an AST. It would only be an AST if it were Tim's only or principal home (and all the other criteria apply). There is no magical "point" at which it changes from one to the other; it's down to the reality of the facts. Larry goes to Berlin for a week-long holiday and sublets his HMO room on spare room.com to Theodore for the week. Upon returning Theodore declines to leave. This depends on the specifics of how it was let to Theodore. It sounds like a holiday let on the face of it though. Now what if Larry instead goes away for one month or three months and sublets his room (or flat if it makes a difference) for those periods. Again at what stage does it become AST? As above, it becomes an AST when all the criteria for an AST are met per the statutory definition. Further, let us suppose that for Larry's fortnight holiday he collects a £300 deposit. Must this be accordingly protected given how casual the tenancy is? Section 213(1) of the Housing Act 2004 only requires a deposit to be protected if the tenancy is a shorthold. | A piece of paper with writing on it is NOT a contract! A contract is the terms and conditions that the parties agree that they will be bound to. A written contract merely serves as evidence (really good evidence) of what those terms and conditions were. For this to matter, it would have to be part of a dispute about the contract. If the parties looking at the term know and agree on what it means then that is what it means. If there is a dispute about this term then a 3rd party (e.g. judge, arbitrator) will look at the term and the context of the contract (both the written contract and the actions of the parties in giving effect to the contract) and decide what they think the parties meant. For the example given, I don't think there is any room for dispute about what is meant and it would be disingenuous of either party to claim that there could be. "Time is of the essence" is a commonly used legal phrase with a well understood meaning - it explicitly makes time a condition of the contract; generally, time is a warranty. A condition is a term for which termination of the contract is a possible remedy; you cannot terminate for breach of a warranty. "Time of the essence" is either a typo or, if deliberate, is clearly trying to get across the same concept. TL;DR 100% enforceable. | Pretty much any time a contractual, statutory or case law precedent uses the word "reasonable" what it means is that the decision regarding what is and is not reasonable is vested in the trier of fact (i.e. the judge in a U.K. landlord-tenant case) to decide on a case by case basis in light of all of the facts and circumstances presented at trial, rather something to be decided as a matter of law by an appellate court absent of extreme abuse of discretion by the judge in determining what is reasonable. Put yourself in the judge's shoes and consider the range of opinion that people who are judges in a case like this might have, and you have your answer. A reasonable amount of time balances out factors like the availability of repair contractors at a reasonable price, the magnitude of the repair, and the extent to which the repair impairs the habitability of the premises, and assumes a time frame that would apply if the landlord is diligent and trying to solve the problem in good faith. A reasonable time to fix a broken heating element is different in July than in January. If three different inspectors failed to determine the cause of the problem, that is going to work in favor of the landlord for a longer period of time. So will the significant extent of the damage (apparently). On the other hand, the fact that the repair rendered the premises completely uninhabitable argues for a shorter time period. Starting late to address an urgent problem could be breach, although it doesn't sound like this has happened here if some action has been taken that would seem to be reasonable under the circumstances and the results have been inconclusive about what to do. Unnecessary foot dragging could also be a fact in reasonableness, because ultimately the duty is to get the job done. There may also be a parallel duty of the landlord to provide a habitable premises and to compensate you for time when this is not provided, in addition to the duty to repair within a reasonable time. Asking to be paid for alternative accommodations while diagnosis and repairs are underway would be a logical demand to make before suing for a fairly small dollar amount in an ongoing lease. You would probably focus on failure to repair in a reasonable time more if you seek to terminate the lease entirely and rent elsewhere instead in the face of repair delays, hoping to avoid the duty to pay rent for the remainder of the lease term due to the landlord's breach of the duty to repair under the lease. |
Does antitrust law allow for a monopoly that strictly benefits consumers? Antitrust law has long existed under the premise that more competition is better for the consumer. But what if a monopoly were to eliminate competition, and then use the increase in efficiency of an empty market strictly to benefit consumers? The two most important players in antitrust law globally are almost certainly the United States and the EU, so I'm specifically interested in the laws of both, especially in how they contrast given Europe's stronger stance against anticompetitive activities. Say a company, Supergood Corp., were to intentionally act in such a way as to eliminate competition. Then Supergood hires all workers laid off by the bankrupt competitors, and uses the loss of competition to increase efficiency by cutting advertising (why advertise when you're the only player), consolidating supply chains for faster and cheaper goods, etc. Supergood Corp. then passes all of the savings resulting from its actions on to consumers, lowering prices to minimize profit, and improving both price and quality over conditions before the anticompetitive activities took place. Considering the criteria used to establish violation of antitrust law, is there a way that Supergood Corp. can avoid legal culpability under relevant laws for the above actions? | There is no provision allowing monopolization "for the good of the consumer", regardless of your standards for judging that. The law simply says Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. It is not clear what actually counts as a violation is the law: it's not the fact of being the only game in town, per se, it's what you do that might bring that about, it's doing so through improper means. The Dept. of Justice, which may prosecute a case, has guidance on what the law could mean, in particular, the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident As you describe it, this is a clear violation of the law. "Noble intentions" is not a valid defense to prosecution. However, prosecution is discretionary, so a favorable government could reach an agreement to not prosecute, as was the case with AT&T (before WWI, not the breakup). Further however, under 15 USC 15c a state attorney general can also bring a civil suit against a monopolizer, so you'd have to get a lot of agreement to not take legal action. | This overstates the case. A company must pursue infringements, arguably even when it isn't economically sensible in isolation to do so, to prevent its trademark from being diluted. But, that isn't the case "when it's blatantly obvious that there is no infringement." There is no benefit from pursuing cases that aren't even colorable infringements. The notion is similar to adverse possession. If you let someone openly use your real property without your permission, eventually, the squatter becomes its legal owner. Also, as in the case of adverse possession, an alternative to suing someone for infringing is to make their permission non-infringing by writing them a letter expressly authorizing them to use your mark. Permissive, licensed use does not dilute a trademark. | Typical in any of the several united-states No, this fails to meet two of the core elements of libel. The statement must be Adverse (fails) Stated by one party To a second party About a third party (fails) The case you're thinking of, where a company brags excessively about their company or products, are covered by a variety of securities and trade laws, such as false advertising. Many of these are applicable in the Federal domain, i.e. are Federal rather than state laws. Edit: Now I see you've changed the question a bit to claiming to be first. Yes, the injured party can sue for that, but they are more claiming false advertising than libel. Accusing someone of not being first-to-market is not a particularly powerful or damning claim. Oreo didn't invent the sandwich cookie nor did Apple invent the computer. So such a claim is really a lot more about the publicity than actual, provable damages; so the controversy is more likely to be aired outside the court system, or in the courts but mainly for the publicity. (an example of the latter being the "Taco Tuesday" trademark-busting action; IIRC Taco Bell even paid the other party's legal fees, despite prevailing.) | 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. | Companies that operate worldwide have to comply with the law everywhere they operate. Some jurisdictions consider mandatory arbitration in standard-form consumer contracts to be unenforceable - providing the out may overcome this. | 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's the interstate commerce clause. Because of how the modern economy works. there's really pretty much nothing that's confined to a single state in its effects and doesn't affect other states. Almost any law can be justified as a regulation of interstate commerce these days, especially if that law is actually directly about commercial activity. The big case to cite here is United States v. Darby (312 US 100). This case tested a federal minimum wage law which banned shipping goods in interstate commerce where they were produced by people paid less than minimum wage, and also banned the employment of those people at less than minimum wage in that context. The Supreme Court found this law constitutional, even though the manufacturing employees weren't personally engaged in interstate commerce, because the employer was engaged in interstate commerce and regulating production was a permissible way to regulate that commerce. Now, after that decision, there was a major broadening of what was allowed to be regulated under the interstate commerce clause. In Wickard v. Filburn (317 US 111), the Supreme Court ruled that the appropriate test to see whether something could be regulated as interstate commerce was whether it had a "substantial economic effect" on interstate commerce. Under this rule, federal regulation under the commerce clause is very far-reaching. It supports extending a minimum wage to domestic service workers (Marshall v. Rose, a Fourth Circuit case from 1980); it supports extending EEOC rules to state employers (EEOC v. Wyoming); it supports a lot of things. | The Answer Depends Upon The Facts Of The Case Related To The Forum Where The Suit Is Commenced The analysis depends upon some key facts that a person asking a question might not know, because they are not intuitively obvious and have actually changed in the last few years, without knowing the relevant law. When The Forum State Has General Jurisdiction Over All Defendants The most important question to consider is this one: Is the state in which the class action suit is brought is home to the headquarters of the US manufacturer (or a state where the manufacturer has a substantial equivalent to a headquarters)? This question matters because, if and only if the answer to this question is "yes" then, "general jurisdiction" would be present under a U.S. Supreme Court precedent established in 2014. If a forum state's courts have "general jurisdiction" over a defendant, this means that the defendant can be sued in that forum on any cause of action against that defendant arising anywhere in the world, regardless of any other relationship that the claim has to the forum state (except for claims in the exclusive jurisdiction of the federal courts which can be brought in a U.S. District Court located in the same state, or in an arbitration forum pursuant to a valid arbitration clause that binds the parties, an issue beyond the scope of this question and answer). Until recently general jurisdiction over a defendant (i.e. jurisdiction over any lawsuit against a defendant without regard to the particular facts of the case) was present in any state where a company has a permanent office for the conduct of business, under half a century of precedent on the issue that traced back to a U.S. Supreme Court case known as International Shoe v. State of Washington, 326 U.S. 310 (1945). In the case of large corporations doing business nationwide, this usually meant that a plaintiff had a large number of states to choose from in which a defendant could be sued on any matter whatsoever which also facilitated the filing of class action lawsuits with plaintiffs from all over the world covered by a single lawsuit. But, in the U.S. Supreme Court case of Daimler AG v. Bauman, 571 U. S. ___ (January 14, 2014), general jurisdiction was limited to the state where the headquarters of the business is located, or another state the defendant is otherwise equally "at home." (For example, the state where Amazon.com chooses to locate its proposed "HQ2" in the case of a lawsuit against Amazon.) If so, the foreign plaintiff member of the class can probably join the lawsuit, since general jurisdiction is present. When The Forum State Does Not Have General Jurisdiction Over All Defendants But, if the forum of the class action lawsuit is not one of the typically one or two states where the defendant is "at home", then a U.S. Supreme Court ruling from June of 2017 that significantly changes the law of "specific jurisdiction" probably bars the joinder of the foreign plaintiff as a member of the class. This case holds that specific jurisdiction over a defendant arising solely from the fact that it sold a defective product in a particular state or country which it caused an injury to be limited to plaintiffs who actually purchased the product or suffered an injury in that state. So, if there is more than one defendant, the forum state must have general jurisdiction over all of the defendants, or must have specific jurisdiction over all defendants over whom it does not have general jurisdiction for a reason that applies to all members of the class bringing the lawsuit. For example, if the defective product was an airplane that crashed in California as a result of a defective product, everyone hurt in the crash could sue in a single action in California because that is where the injury occurred to all of them, even if the people on the plane who were injured or died came from different states and countries. Similarly, if the product was defective as a result of design work conducted by multiple large corporate defendants with different home states outside Colorado that took place entirely at a design collaboration workshop at the University of Colorado at Boulder, a class action including all persons injured globally by the defective products could be brought in Colorado, even if the injuries were dispersed all over the world at places where the defective products were delivered. The case adopting this radical change in the law of specific personal jurisdiction is Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. (U.S. June 19, 2017) in which the court finds that "specific personal jurisdiction" (as opposed to "general jurisdiction") is lacking with regard to the claims of members of the class of plaintiffs who are not California residents in this case brought in a California state trial court (in an 8-1 decision with Justice Sotomayor dissenting). According to the official syllabus of that case: A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that they were injured by Plavix in California, or that they were treated for their injuries in California. The California Superior Court denied BMS’s motion to quash service of summons on the nonresidents’ claims for lack of personal jurisdiction, concluding that BMS’s extensive activities in the State gave the California courts general jurisdiction. Following this Court’s decision in Daimler AG v. Bauman, 571 U. S. ___, the State Court of Appeal found that the California courts lacked general jurisdiction. But the Court of Appeal went on to find that the California courts had specific jurisdiction over the claims brought by the nonresident plaintiffs. Affirming, the State Supreme Court applied a “sliding scale approach” to specific jurisdiction, concluding that BMS’s “wide ranging” contacts with the State were enough to support a finding of specific jurisdiction over the claims brought by the nonresident plaintiffs. That attenuated connection was met, the court held, in part because the nonresidents’ claims were similar in many ways to the California residents’ claims and because BMS engaged in other activities in the State. The high court finds that the absence of an in-state injury or injury to a resident plaintiff is controlling. It is not sufficient in the high court's analysis that the corporation is already subject to suit in California as a result of its conduct in California to most of the people in the suit. Instead of analyzing whether California has jurisdiction over the product liability situation, in general, the high court decides that the determination regarding whether California has jurisdiction over a suit against a particular defendant must be made on a plaintiff by plaintiff basis when "specific jurisdiction" rather than "general jurisdiction" is involved. Sotomayor's dissent in this case emphasizes implications of this ruling in the kind of situation posed by this question at Law.SE: Three years ago, the Court imposed substantial curbs on the exercise of general jurisdiction in its decision in Daimler AG v. Bauman, 571 U. S. ___ (2014). Today, the Court takes its first step toward a similar contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State. I fear the consequences of the Court’s decision today will be substantial. The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are “at home” in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary. A core concern in this Court’s personal jurisdiction cases is fairness. And there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike. . . . It “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U. S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured. But that is exactly what the Court holds today is barred by the Due Process Clause. This is not a rule the Constitution has required before. I respectfully dissent. The most serious issues arise in one of the situations that Justice Sotomayor addresses which the majority does not adequately consider in the rebuttal in its own opinion, which is the situation where there are multiple possible defendants with different home states, whose relative liability is unknown or independent or mutually dependent. For example, suppose that the product has two kinds of defectively manufactured components manufactured by companies with two different home states in the U.S. (e.g. an electronic device charging bay and a battery) that are assembled by the customer after they are delivered independently, which, when acting together, cause the assembled product to be dangerous and cause injury even though the design itself is not defective. Under Bristol-Myers, there is no U.S. forum with jurisdiction over all injuries caused by these compound manufacturing defects that can allocate responsibility between the responsible manufacturers on a consistent basis. Why Didn't It Matter That The Drugs Were Distributed By A California Distributor? The high court is also unimpressed with the fact that the drug giving rise to the product liability was distributed by a California company, presumably because the cause of action in question in the case was brought against the manufacturer as a strict liability defective product claim, rather than as a claim against a seller of the product arising from a warranty that the product was free of defects arising under the Uniform Commercial Code or an express warranty. This makes sense if the California distributor was a wholesale company not in direct privity with the retail buyers of the products from retail pharmacies who were injured by the products. The wholesaler could be sued under the Uniform Commercial Code on its warranty to the buyers of the drugs, only by the intermediate wholesalers or retail pharmacies that bought the drugs. The wholesaler could also be sued on its warranty only if those direct buyers themselves suffered injuries as a result of the defective product. For example, a retailer might have injuries in the nature of breach of warranty liability in suits brought against retail sellers by injured consumers under the Uniform Commercial Code that the retail sellers would be seeking indemnification of from the California based wholesale distributor. But, Bristol-Meyers does mean that it is basically impossible for injured consumers who were not injured in the forum state to sue both the manufacturer of the defective drugs (where jurisdiction would be present in New York and New Jersey) on a tort theory, and the distributor of the defective drugs (where jurisdiction would be present in California) in the same action. So, it is effectively impossible in this case for all people injured by the defective drugs to sue all of the potential Bristol-Meyers case defendants in a single lawsuit. Statutory Considerations Existing statutory limits on federal court jurisdiction limit the jurisdiction of the U.S. District Courts in most cases of cases to cases in which a state court in the state where the U.S. District Court is located would have either general jurisdiction or specific jurisdiction of the defendant (without regard to the fact that the case might be within the exclusive jurisdiction of the federal courts as a matter of subject matter jurisdiction which pertains to the nature of the cause of action asserted rather than the ties of the defendant to the forum state). But, the decision leaves Congress with the option of potentially changing that statute which currently limits the personal jurisdiction of federal trial courts to that of a state court of general jurisdiction in the same state, as it already does in cases that are predominantly "in rem" (e.g. interpleader cases and interstate boundary and real property title disputes), in bankruptcy cases, and with respect to the subpoena power of U.S. District Courts. The official syllabus also notes that: The Court’s decision will not result in the parade of horribles that respondents conjure up. It does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. Alternatively, the nonresident plaintiffs could probably sue together in their respective home States. In addition, since this decision concerns the due process limits on the exercise of specific jurisdiction by a State, the question remains open whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. Constitutionally, Congress still has the authority to vest all U.S. District Courts with jurisdiction over any case in which the United States treated as a single state for purposes of general jurisdiction and specific jurisdiction analysis. This would leave the question of which particular U.S. District Court was the proper one to file in as a question of venue (which does not have a constitutional dimension) rather than a question of jurisdiction (which is subject to constitutional considerations), and many legal scholars have urged Congress to do just that. But, so far, Congress has not altered a status quo that does not give U.S. District Courts the maximal jurisdiction allowed under the United States Constitution. But, so far, Congress has instead taken an intermediate position on the geographic scope of federal court jurisdiction in the jurisdictional portion of the Class Action Fairness Act of 2005 (which also limits the extent to which "coupon settlements" of class action cases are permitted). In particular (per the link in this paragraph): The Act permits federal courts to preside over certain class actions in diversity jurisdiction where the aggregate amount in controversy exceeds $5 million; where the class comprises at least 100 plaintiffs; and where there is at least "minimal diversity" between the parties (i.e., at least one plaintiff class member is diverse from at least one defendant). The court, however, may decline jurisdiction under certain circumstances, and is required to decline jurisdiction in certain others. But, while the Class Action Fairness Act of 2005 allows many class action lawsuits which would otherwise be brought on exclusively state law claims in state court to be brought in federal court, or removed from state court to federal court, it does not authorize class action lawsuits that could not be brought in a state court which a U.S. District Court is located due to lack of either general jurisdiction or specific jurisdiction from being brought in that federal court either. The Class Action Fairness Act of 2005 was favored by businesses likely to be defendants in future class action lawsuits (such as manufacturers), because state civil procedure law in some U.S. states such as California, is more favorable to class action plaintiffs than federal civil procedure laws related to class actions. |
Is the extended State of Emergency and State of Disaster in Michigan legal? I live in Michigan and we've been under a state of emergency since March 10th, 2020, as declared in Executive Order 2020-4. That order cited two statues as authority for this action: PA 302 - Emergency Powers of Governor and PA 390 - Emergency Management Act. On April 1st that was expanded to include a state of disaster in Executive Order 2020-33. The challenge here (and I'll go into this more later) is that PA 302 and 390 seem to have some overlapping and conflicting portions. PA 302 doesn't place any specific time restrictions on the length of these declarations, while PA 390, Section 30.403 states that: The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. On April 7th (28 days after the initial state of emergency declaration) Michigan's legislators voted to extend the states of emergency and disaster for 23 days (until April 30th). On April 30th Michigan legislators decided to not extend the state of emergency. The governor extended them nonetheless, issues 3 new executive orders (source): "Executive Order 2020-67, which clarifies that a state of emergency remains in effect under the Emergency Powers of the Governor Act of 1945. The order is effective immediately and continues through May 28, 2020 at 11:59pm. The governor will evaluate the continuing need for this order prior to its expiration, and if she determines that an emergency no longer exists, will terminate or extend the state of emergency declared in this order." "Executive Order 2020-68, which declares a state of emergency and a state of disaster across the State of Michigan under the Emergency Management Act of 1976. The state of emergency and state of disaster declared by this order will be effective through May 28, 2020 at 11:59pm, and the governor will evaluate the continuing need for the order prior to its expiration, terminate the states of emergency and disaster if the threat or danger has passed." "Executive Order 2020-66, which terminates the existing state of emergency and disaster declarations issued under the Emergency Management Act in Executive Order 2020-33." That's confusing to me - EO 2020-66 terminates the existing states of emergency/disaster while EO 2020-67 clarifies that it's still in effect. I've also been trying to understand how these (seemingly) conflicting statues (PA 302 and 390) work together. I can see that PA 390, Section 30.417 specifically mentions how it doesn't limit PA 302 in some capacity (emphasis added): This act shall not be construed to do any of the following [...] (d) Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws, or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act. But that seems to impact the proclamation, not duration, of the states of emergency or disaster. So back to my question - is it legal to pull from the authority of PA 302 while somehow sidestepping PA 390? Or is that the point of 30.417 - does that clause prevent the duration restrictions in PA 390 from amending anything in PA 302? In that case I would like to know what the value of those restrictions in PA 390 is. | 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. | 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. | 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. | The general story is that one state does not have jurisdiction over an act carried out in another state. The Wiki on state gun laws claims that ownership in Illinois requires a permit, but the law is here, and in fact the law addresses possession and acquisition, but not ownership, for example 430 ILCS 65/2: No person may acquire or possess firearm ammunition within this State without having in his or her possession a Firearm Owner's Identification Card previously issued in his or her name by the Department of State Police under the provisions of this Act It is legally immaterial that the word "Owner" is in the name of the card. It is likewise claimed that Massachusetts requires a license to own a gun, but from what I can tell the requirements pertain to licenses to possess or purchase, and not just to own. So there seems to be no impediment to actual ownership in the US. | The answer by @Digital fire is not always correct. Some states have passed general-purpose "duty to rescue" statutes. The one I've been trained about is Vermont's (Cite as: 12 V.S.A. § 519) § 519. Emergency medical care (a) A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or herself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others. The statue goes on to provide good Samaritan protection and state the penalty for violating the statute: a fine of not more than $100. Digital Fire does refer to the Wikipedia article about a duty to act/rescue, but the lead of that article says it is referring to torts, that is, whether the person who wasn't assisted (or his/her estate) could bring a lawsuit against the person who didn't help. But the Vermont statute creates an offense with which the suspect could be charged in a criminal trial. | Interesting question. I routinely write wills that authorize the executor to destroy property that has no significant economic or sentimental value, but I've never encountered a case where a testator or testatrix has directed that property be destroyed and I've never seen a reported case (or even a news report) in which that has happened. To the extent that an estate is solvent, there is no reason that a creditor could complain and if the destruction was done in a safe manner (as opposed to burning down a house or something like that without consulting the fire department) I'm not sure that there would be a public interest in doing so either. There are many religions that had a practice historically of burying someone with grave goods, so there are reasonable First Amendment freedom of religion arguments for allowing such a practice if it had a religious basis. And, if no interested party objected, I don't see how anyone could stop the executor from acting, unless the property to be destroyed was, for example, evidence of a crime, in which case it would be a crime to destroy it and the provision of the will would be void because it was a crime to carry it out. If an executor sought permission from a court to carry out this instruction, the court might require a public notice of the planned destruction to give notice to any third party who might claim an ownership interest in the property allegedly belonging to the decedent. On the other hand, usually, all interested parties in an estate can agree to act contrary to a will by unanimous consent, in which case no one would have standing to fight for the provision in court (unless it was considered a charitable bequest, in which case a state attorney general or an advocate appointed by the court with the "will" as the client could defend it). Given the strong public policies in the law disfavoring "waste" (i.e. useless destruction of property) such a provision could be held to be void as against public policy (similarly, bequests contingent upon marriage decisions are now void as against public policy). | The law is part of a larger bill modifying punishments for various crimes. For example it increases the penalty for vandalizing government property, creates offenses for assault on a first responder carrying out their duties (depending on the severity of the assault), increases the penalty for aggravated rioting, obstruction of highways and so on. It also clarifies that being assembling or being present at the scene of a riot is not an offense. The only new crime created is assault on a first responder. Unauthorized camping on state property was already a crime: this is an increase in the penalty for committing that crime. It does have a requirement for notice and continued violation for 24 hours, unlike vandalism where if you do the deed, you can be arrested. The courts have not held that the First Amendment protects the right to trespass, assault or commit vandalism. The only viable avenue for a legal challenge is that the punishment is cruel and unusual (too severe). A change from Class A misdemeanor to Class E felony is the smallest increment in penalty. The state will argue that the increase in penalty is necessary to maintain public order, and that it is not arbitrary or capricious, because there have been many recent violations of the law. In general, when laws are frequently disobeyed, it is legal for the government to increase the penalty for breaking the law in order to achieve compliance. | There are venue restrictions where political speech is restricted, such as on military bases; content restrictions (transmitting classified information to the world); you cannot defraud by saying false things in order to get something, you cannot defame a person, you cannot speak obscenely (though it's hard to tell what counts as "obscenity"). You cannot appropriate other people's property in speaking (i.e. copyright law is a restriction on speech). The type of speech restrictions seem to pertain to speech and violence caused by such speech. A classic limitation is that you cannot speak "fighting words" (Chaplinsky v. New Hampshire 315 U.S. 568), which in 1942 meant calling someone a "damned racketeer" and "damned Fascist", which the court characterized as "inherently likely to provoke a violent reaction". The court subsequently refined its position on "provocative" speech. In Virginia v. Black 538 U.S. 343 a law against cross-burning was found to run afoul of the First Amendment as a restriction on political expression, but it would be fully consistent with The Constitution to outlaw "cross burning carried out with the intent to intimidate". This states may "prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm". The current position is that you cannot incite to the imminent use of force. In Brandenburg v. Ohio 395 U.S. 444, the court stated that the First Amendment does not "permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". There are myriad laws against threats, for instance in Washington you may not "knowingly threaten(s) to cause bodily injury immediately or in the future to the person threatened or to any other person", and you can't do that ("knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person") in Ohio either. You can't get away with threatening "to commit a crime which will result in death or great bodily injury to another person" in California. This class of restrictions on speech seems to be quite robust. You may not induce panic in Ohio, e.g. shout "fire" in a theater -- I don't know if any other state has such a law. |
Quora bots are copying a significant amount of Law Stack Exchange questions to Quora, without proper attribution Quora users/bots are copying a significant amount of Stack Exchange questions to Quora, without proper attribution. It seems quite systematic. For example: Are passengers allowed to record the audio of their interactions with the US immigration officers when clearing the immigration as they enter the US? was copied to Quora just a few seconds after to https://www.quora.com//unanswered/Are-passengers-allowed-to-record-the-audio-of-their-interactions-with-the-US-immigration-officers-when-clearing-the-immigration-as-they-enter-the-US?share=1 Is it legal to completely retell a film in text? was copied to Quora: https://www.quora.com/Is-it-legal-to-completely-retell-a-film-in-text?share=1 This issue affects a few other Stack Exchange websites as well but I thought that some users on Law Stack Exchange may have the most suitable legal knowledge to find an appropriate course of action. Quora doesn't respond to my copyright violation complaints, and Stack Exchange employees aren't interested either. | This is not (necessarily) copyright violation It's possible that Quora's usage falls within Fair Use. At the very least, the argument could be made. If it does, then there is nothing that Stack Exchange or the OP can do. Stack Exchange can choose not to protect their copyright Unlike trademarks, which lapse if not protected, copyright endures. Therefore Stack Exchange can pick and choose the copyright fights they want to get involved in and those they don't. If you have brought it to the attention of the copyright owner (or, in this case, licensee) and the copyright owner chooses not to act then you have done all you can and significantly more than you have to do. The OP has copyright I note that one of the examples is your question. As the copyright holder, you are free to issue a DCMA takedown notice on Quora if you feel your copyright has been violated. | The copyright on the book of quotations protects the collection. That is, it protects the author's choice of which quotations to include, and of what order to list them in. It also covers any division of them into groups or categories, and any added text (intros, comments, and so on) written by the author. It does not protect the quotations themselves. As those are not the original work of the author, s/he can have no copyright in them. Any quotes that are in the public domain (through expiration of copyright, or otherwise) may be used freely. Any others are protected by copyright. However the use of a short quotation is often fair use under US law, or is subject to another exception to copyright elsewhere. But that depends very much on the details of the factual situation. So quotes with expired copyrights are safe to use. Others may well be safe if they are relatively short, and proper attribution is given. | No. The Creative Commons license seeks to promote recognition of the original author's work through attribution, but does not provide the same framework for enforcement that the DMCA would. The proper approach in cases such as the deleted Wikipedia article and subsequent reuse would be to provide a courteous notice to Wikipedia of your original publication and ask to be listed as the original author or be provided attribution. In the absence of relief there, then what rights you have would be determined by the Wikipedia Terms of Service. Since, and I am assuming here, that you are not generating billions of dollars on the original publication in royalties, seeking to bring a DMCA type enforcement on a Wikipedia article dispute would be like trying to swat a fly with a sledgehammer. (or more commonly in divorce, two people having hearing and spending thousands of dollars on attorney's fees fighting over a blender -- they are free to do it, but they would have been much better off buying 500 new blenders...) Keeping perspective and providing a courteous letter is probably your most cost efficient first step in situations like this. And in all areas of law, just remember, you catch more flies with honey than you do with salt. (meaning taking the courteous approach usually affords better results than a scalding letter breathing hell-fire and brimstone) In followup to earlier comment: Presuming you would be covered by the World Intellectual Property Organization Treaty on Copyright of 1996 (as a U.S. Citizen you would be), and your copyright is on file with the United States Copyright Offices (same presumption) as prerequisite to suit, then there is nothing that prevents you from invoking the protections under general copyright law and under the DMCA (inlcuding the Takedown provisions). Note: these are not the only prerequisites to taking action, but instead the minimum critera to qualify, and note this does not pass on the wisdom of doing so (there are often significant consequences to improperly invoking previsions of certain acts). | There is language, but not a mechanism, covering this. Section 3(a)(3) of version 4 licenses says If requested by the Licensor, You must remove any of the information required by Section 3(a)(1)(A) to the extent reasonably practicable. If you become aware of a person using your material and attributing you, and you want the attribution removed, you would accordingly notify them (somehow), and they are required to remove the offending material. The removable informations includes: i. identification of the creator(s) of the Licensed Material and any others designated to receive attribution, in any reasonable manner requested by the Licensor (including by pseudonym if designated); ii. a copyright notice; iii. a notice that refers to this Public License; iv. a notice that refers to the disclaimer of warranties; v. a URI or hyperlink to the Licensed Material to the extent reasonably practicable; | The Google terms of service do not prohibit using their translate programs to create something that you sell. TOS for using their API would be irrelevant, since that isn't what you're doing. There is no clear copyright issue: as far as I can tell, there is not yet any case law suggesting that the output of a program can be owned by the copyright-holder of the program. (Copyright must be held by a legal person, i.e. an actual person or a corporation, and a program cannot yet be a legal person). A human-performed translation is subject to copyright protection since what is protected is that which is created by the (translating) author, and a program lacks that creative element. A translation owes its existence to the program-user using a particular tool to create the work, be it a pen or a translation program. What is unclear at present is whether a person using machine translation in a permitted fashion to create a derivative work thereby gains copyright to that derived work. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. | Under US law your proposed use would be considered copyright infringement of the film/TV copyrights unless it is considered "fair use." The evaluation for "fair use" defense can only be done by a Federal Court judge as part of a lawsuit. The judge will evaluate the fair use defense using a four part test that evaluates: (1) the purpose and character of your use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use upon the potential market. This is a very fact specific inquiry, so it isn't amenable to easy yes or no answers. However, based on your description your use wouldn't be very transformative under step (1) since you are using frames from the movie unchanged, and you are using it for commercial purposes as opposed to criticism/commentary/education. Nor does step (2) seem to favor you since the anime films are not heavily based in facts that you would be reusing/publishing. Step (3) would likely favor you since the amount of material taken is very small (1 second) compared to the work as a whole. Likewise, step (4) would also likely favor you since your use is unlikely to impact the commercial market for the original film/tv show. If you intend to rely on the "fair use" defense, then you should definitely hire an attorney who can give you an individualized opinion rather than the generalities I've provided here. As to other GIF users in the App Store, they may (1) have licensed the underlying content, (2) be blatantly infringing the copyrights for the content and hoping not to get caught, (3) relying on fair use (see above), and/or (4) claim DMCA safe harbor as a message board so long as user are the ones uploading the GIF content. | 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. |
Does "general information and use only" means that I can use for commercial purpose? The following text shows the terms and conditions of this site: https://alltransistors.com/terms.php Welcome to our website. If you continue to browse and use this website, you are agreeing to comply with and be bound by the following terms and conditions of use, which together with our privacy policy govern alltransistors.com's relationship with you in relation to this website. If you disagree with any part of these terms and conditions, please do not use our website. The term 'alltransistors.com' or 'us' or 'we' refers to the owner of the website. The term 'you' refers to the user or viewer of our website. The use of this website is subject to the following terms of use: The content of the pages of this website is for your general information and use only. It is subject to change without notice. This website uses cookies to monitor browsing preferences. If you do allow cookies to be used, the following personal information may be stored by us for use by third parties: Tracking cookies. Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law. Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements. All trade marks reproduced in this website which are not the property of, or licensed to, the operator are acknowledged on the website. Unauthorised use of this website may give rise to a claim for damages and/or be a criminal offence. From time to time this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s). According to the "The content of the pages of this website is for your general information and use only" statement, can I use the content of this site for commercial purpose? I want to create an app (by using the content of this site), and sell it. They don't answer my emails for such permission. | No You are limited to “your ... use only”. You are not given permission to make this available for 3rd parties either commercially or for free. | Such use might well be illegal, and subject the user to tort liability, or possibly even criminal liability. Parties For this discussion let us call the person or company that developed and wants to protect the information D, the person or company that downloaded and wants to use the information U, and the person who placed the information on the server P. Trade Secret One possible source of liability is if D considers the information to be a trade-secret. The law on trade secrets varies to some extent in different countries, although there is a general similarity. Since no jurisdiction is specified in the question, I am going to look at the united-states law. Definition The LII page on "Trade Secrets defines a trade secret under the US Uniform Trade Secrets Act ("UTSA") as: "information, including a formula, pattern, compilation, program, device, method, technique, or process that: 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 Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. A similar definition is given by the USPTO page on "trade secret policy". Prior to the USTA, and still in those US states that have not adopted the USTA, trade secrets were/are protected under the common law. The LII page lists the common law factors, as given by the Restatement of Torts (1939) § 757, comment b: The extent to which the information is known outside the claimant's business The extent to which it is known by employees and others involved in the business The extent of measures taken by the claimant to guard the secrecy of the information The value of the information to the business and its competitors The amount of effort or money expended by the business in developing the information The ease or difficulty with which the information could be properly acquired or duplicated by others These factors may apply in other common-law countries. In either case, one must consider how the would-be user came to acquire the information, and thus how it came to be on the server from which it was downloaded. One must also consider whether it was the subject of "reasonable efforts" to protect its secrecy, under the circumstances. Circumstances If P was violating an obligation of confidentiality, such as an NDA or a duty as part of an employment relationship, then the placement of the info on the server was improper. In such a case its acquisition by another, such as U might constitute misappropriation. The same would be true if a person under an obligation of confidentiality arranged for the server to be indexed by a search engine, when it should not have been. The case for misappropriation would be stronger if U knew that the information was considered confidential by D, and also if P had informed U about where to find the info, or what search terms would uncover it. If P was acting with the permission of D, and P or someone else at D simply failed to realize that the server was, or might become, indexed, then the question is whether the steps taken by D to keep the info secret were reasonable. If this a case of "inadvertent disclosure resulting from the trade secret holder's failure to take reasonable protective measures" then there is no misappropriation, and the actions of U are lawful. That will depend of a judgement of whether D's actions were reasonable in light of the value of the info and the overall circumstances. If the placement of the info on the server is considered to constitute "general publication" of the info, so that it is no longer secret in any meaningful sense, then D may have a claim against P, but not against U unless U acted in collaboration with P. Copyright Law The documents downloaded from the4 server are almost surely protected by copyright. Directly incorporating them into an open source project without permission from the copyright holder would be copyright infringement, and would subject U to a suit for infringement. However, copyright does not protect ideas, methods, or facts. If U learns a method or idea from the document, and uses that knowledge without directly copying or closely paraphrasing the document, there is no copyright infringement and no claim under copyright law. Patent Law The question does not mention any patents. It is possible that D has patented the method describe in the downloaded documents. If so, and if the patent is valid, any use by U would be patent infringement, and the question of how U learned the info becomes irrelevant. However, most software developments such as data structures are not patented, so this is a somewhat unlikely, albeit possible, case. Notre that if the information is covered by a patent is is by definition not secret, as all patents must be openly disclosed. But they may not be widely publicized, and if U does not make a patent search, U may not realize that the document includes patented technology. This possibility is largely incompatible with the trade secret possibility, althogh it is possible to use trade secrets in connection with patented tech. Conclusion In short whether U may lawfully use then info, or is subject to a tort claim by D, or even criminal action, depend on the details of the overall facts. U would do well to take legal advice on the matter before proceeding to use the info. | It doesn't make a difference if the product is free or commercial use, if it's initiated by a company or an individual. What you are considering would be a "derivative work" and without explicit permission from the copyright holder, it is considered a violation. | The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION. | There is no fixed legal meaning to "non-commercial", instead, every license must define what is meant by "non-commercial", if it uses that term. CC BY-NC 4.0 says that NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange. That would mean that you cannot sell software of a dataset so licensed, but you could give it away. Copyright does not prohibit using a work as raw data for some kind of analysis, such as counting occurrences of words, so it is legal to publish a table of word-counts from the Harry Potter novels, even though you can't publish the novels without permission. The word counts are facts, not "expression", and copyright doesn't protect facts. It is possible that your initial access to the expressive work was contingent on not doing something with that work, for example a license to copy a book in the first place might be contingent on you not using the data for purposes of statistical analysis. For Harry Potter books, there's really no way to show that Smith could only have gained access to the work by agreeing to a certain license and showing that Smith did agree (Potter books are everywhere). It is possible that some work is so well controlled that you did indeed agree to "not subject the work to statistical analysis". It is highly unlikely that there is any such condition is attached to a work that has is "non-commercially" licensed. You can read the license and see what it actually says. Basically, an abstract model of X is not X itself, it is a fact about X, and facts are not protected. | It's hard to prove a negative, and I'm not sure which specific part of the quoted Terms you object, to, but it specifically states that content access may be done to: Comply with the law Protect its customers; and Protect the security of its business; and Protect its business interests. It's unlikely that access of information to comply with the law is illegal. At least one EU directive, Directive 95/46/EC, sets limits on the collection and use of personal information. We're concerned with the first condition for lawful data processing, and the second principle of data quality. Data processing is only lawful if the data subject has unambiguously given his consent; or processing is necessary for the performance of a contract to which the data subject is party; or processing is necessary for compliance with a legal obligation to which the controller is subject; or processing is necessary to protect the vital interests of the data subject; or 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 or in a third party; or processing is necessary for the purposes of the legitimate interest pursued by the controller or by the third party, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection. The principles of data quality, which must be implemented for all lawful data processing activities, are the following: personal data must be processed fairly and lawfully, and collected for specified, explicit and legitimate purposes. They must also be adequate, relevant and not excessive, accurate and, where necessary, kept up to date, must not be stored for longer than necessary and solely for the purposes for which they were collected; special categories of processing: it is forbidden to process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. This provision comes with certain qualifications concerning, for example, cases where processing is necessary to protect the vital interests of the data subject or for the purposes of preventive medicine and medical diagnosis. So, let's say that someone has given their consent. It'd be at least a little questionable whether the inspection of private information could mean that they access personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. I'm a bit less clear on US laws, but you'd probably look for laws around Personal Identifying Information, as that's where a lot of focus has been. | 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. | By "buying the song" on Gumroad you don't actually buy the song, you buy the right to do specific things with that song. I couldn't find the exact license terms, but for 800 Yen (about $6) for a whole album I highly doubt that this will include much more than the right to listen to the song on a private device. The rights to publicly perform, reproduce, redistribute, use commercially etc. usually cost a lot more. So if you want the rights to use the song in your own video, you will have to negotiate the purchase of a license which allows you to do that with the creator. Or if they reassigned their copyrights to a music label or copyright collective (which some music artists do), with that organization. There are some exceptions in the copyright laws of some countries where you can use parts of a song without a license. For example, the "fair use" exception in US copyright law if you review, discuss or analyze a song. But such exceptions usually don't apply if you use the song as background music, adapt the song into an own work or even just reupload the song on your own channel. |
Has there ever been a case where a company or person takes themselves to court? Weird question I just had, sort of summarised in the title really. Has there ever been a case, anywhere in the world, where a person or company (or company vs subsiduary) has taken themselves to court. If an example exists, its probably because of some weird contract or legal clause that forces the case, and will get thrown out quickly (but prove me wrong...). What I'm not looking for: Cases where an employee (or ex employee) has taken action against their employer (or ex employer). Grievences for any number of reasons are quite common. Family vs family cases. This is unfortunately also quite common, ie over wills and issues of inheritance. (The exception to this is detailed below). One case I'm aware of is which is family vs family that was not serious but went to court is the case of a woman who took her nephew to court after he gave her a hug and broke her wrist. This was forced because of a stipulation in her medical insurance. I'm guessing any company vs self action will be for tax evasion/hollywood accounting purposes. | Yes there has At common law you cannot be both a plaintiff and a defendant. However, statute law can allow this - either intentionally or unintentionally. An example is Barbara Bagley v. Barbara Bagley, 2016 WL 6299507 (Utah 2016). | It isn't that uncommon to do something similar to this, which is called a "test case". One of the more familiar examples of this kind of litigation conduct is the case of Plessy v. Ferguson. There have been test cases, for example, that involved important questions of E.U. jurisdiction in civil law countries as well. | In some jurisdictions, California probably being the most well-known in the US, there are Anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes, which allow a defendant to file an anti-SLAPP claim (for sake of clarity I'm going to keep calling that person the "defendant") when the plaintiff's suit appears to have been filed for the purpose of infringing upon the defendant's rights by forcing them to bear the costs of litigation or settle the claim in order to avoid them, and itself has little merit or the plaintiff clearly does not expect it to succeed. In California, if the Anti-SLAPP claim succeeds and the plaintiff's claim is dismissed as a SLAPP, the defendant is normally awarded attorney's fees from the plaintiff. The Anti-SLAPP claim also halts discovery in order to reduce the costs on the defendant, so in effect it allows a defendant to challenge the plaintiff's right to sue them on the particular issue before the defendant has to bear the majority of costs. | An LLC is a legally distinct entity from your person. Basically, if your LLC is sued, and you lose, you can lose only what you put into your LLC. Your personal assets are untouched. A very sophisticated plaintiff may try to get around this suing both your LLC and you personally. (I've done this myself.) Even so, if you are careful to keep the business of your LLC separate from your personal business (no commingling of assets, no use of your LLC to pay your bills, but only a salary), then the law will often absolve you of personal liability for the "actions" of your LLC. The reason I warn against "commingling" is because if you do this, you can lose the protection of the LLC as a separate entity, and become personally liable for what the LLC does. This is known as "piercing the corporate veil." If you have home rental operations in more than one state, you may want to establish LLC's for each state. That's because some states are more tenant- and other states are more landlord- friendly than others, meaning that you may want to defend yourself differently in one state versus another. | The customer list is indeed a trade secret if the shop kept its customer list secret and has an advantage from having that customer list, while others don’t have it. And I would think that is the case, because a competitor laying their hands on the list could for example send special offers to the customers in the list. The question is whether your two hairdressers took that customer list and whether the store has reasonable evidence that they did. If customers find out where their favourite hairdresser moved to that’s no legal problem. Can’t understand why no attorney wants to take the case. To the attorney it doesn’t make a difference whether they took the list or not. If they took the list then his or her job is to end the case with the smallest possible amount of damages being paid. PS. Just read in the comments that there is an accusation of "intentional interference with economic relationship". I would want a lawyer who knows the difference between perfectly legal competition which includes trying to get customers to move their business, and "intentional interference with economic relationship". PS. Really make sure that these guys appear in court. With a lawyer. Not appearing means that if the plaintiff says "Judge, these guys did X, punish them!" and they are not there to say "We absolutely didn't do X, prove it if you can", the judge will assume that they did X. | 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. | Yes Ideally a case will be conducted by the same judge throughout, however, there are a multitude of personal, professional and administrative reasons why this might not happen - litigation can take years and like every other workplace people come and go, have changing family circumstances, sickness, vacations etc. A litigant should not be alarmed and trust that the new judge has got themselves up to speed. For most people, litigation is a rare and confusing experience, for judges it’s just another day at the office. | 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. |
(When) are police required to identify themselves? It was my understanding that when a citizen asks for an officer's name and badge number, they're required to provide it to you (in Michigan). Is there a law pertaining to this? If so, is it only the case if I'm being detained, cited, or arrested, or any time I request? | I can't prove a negative, but it seems quite clear from my research that providing name and badge number is policy, not law. i.e. Many departments have a policy that their officers will provide name and badge number on request, but the punishment for failure to do so would be at the employment level not the legal level. This site has a fairly good selection of various police department policies I will note that Massachusetts appears to be an exception as mentioned by jimsug in his comment to another answer, they do require police to carry and show ID upon legal request (I did not look up what a "legal request" is) | First off, you cannot booby trap your property, period. It is both illegal and tortious. But, as you noted, there are already questions/answers that deal with this issue. Sure enough, if the police get a no-knock search warrant, that in and of itself is the Court order allowing entry by any means necessary. When the officers, there by right of law, breach the outer perimeter and stop at the warnings, they will not be seeking any other court orders to have you allow them "safe entry". Their warrant gives them all the right they need, as probable cause of crime and violent intent or intent to destroy evidence was already presented to a judge. If, in real life, you actually put up signage or state explicitly that they're being forewarned that you intend to harm, trap, maim, or otherwise make it unsafe to enter; or that doing so will result in an attempt to destroy evidence, that is something they have already assumed (hence the seeking and granting of the no-knock vs. a regular search warrant). However, the signs in and of themselves are not protected speech, but rather overt threats, and that would put you in a very precarious position indeed. If the police get a "no knock" warrant (the most invasive, difficult to get warrants, whereby there is a grave risk of destruction of evidence or injury to persons), the police will ensure they have safe passage – they've come prepared for dangerous entry long before your signs, but once they see them, you could rest assured they will take them as they are intended: as a direct threat to their safety, and they will deploy a SWAT or other heavily armed entry team (who is usually there anyway for these dangerous entries). You could expect things like smoke/out canister and teargas, flash bangs, and heavily armed and well armored officers attempting to force you from your dwelling. Presumably, if you need to disarm traps to escape the situation, they can enter. Assuming you're home when they invade with chemical weapons, whether you come out or not, they will force you to disarm whatever booby trapping you may have in place that may destroy evidence, likely walking you in as their human shield in the event you're lying about any dangerous ones. That is probably your best case scenario. They may just decide to throw you through the perimeter once they get their hands on you, just to see what happens! If you don't exit and are home or if you are lucky enough to be out, the bomb squad, ATF, and SWAT will converge on your property in less than typical means. Because from your warning they can assume some incendiary or explosive device exists, bringing it into the jurisdiction of other agencies. If they cannot disarm the trap, they would send a robot in first to set it off, or cut through your roof, or knock down a wall – whatever it takes to get in without using a typical means of ingress/egress, so as not to chance your trap. Regardless, you can rest assured that they will get in, and you will pay for the trap you set for law enforcement. Further, to whatever charges you'd have been faced with from evidence flowing from the original warrant will now be added additional charges like attempted murder of a peace officer; if you have any roommates or known associates: conspiracy to do those things; attempted destruction of evidence, criminal interference with a police investigation ... all at a minimum. If anyone is actually harmed, your signage offers you no shield from criminal or tort liability, and you will be lucky to live through the experience once they get their hands on you. Police tend to not like being the targets of intentional maiming, dismemberment or death. You have to understand that, according to this hypothetical, you are intentionally trying to harm law enforcement, or destroy evidence of your dangerous criminal activity. These are not invaders, or intruders according to the law; they are the people whose job it is to enforce the laws, collect the evidence (if you weren't getting arrested pursuant to the fruits of the warrant, you certainly would be at that point). The signs themselves would make excellent exhibits in the coming case of State v. you. BTW: The only reason they have left John Joe Gray alone is that he knows the Henderson County Sheriff Ronny Brownlow, who has been told that the ATF, FBI, and State SWAT, would all be happy to enter and get or kill Mr. Gray if need be. Since the Sheriff never filed any federal charges, and has determined that he doesn't want to breach (and it's in his jurisdiction to determine this), the Sheriff, aware that Gray's entire family is holed up in the "compound", decided it's not worth going in. It's as well known as it is anomalous. When the police want in, and have the right to get in, they will get in. That Sheriff just decided it's not worthwhile. | This is currently untested but the U.S. Supreme Court did leave the door open to allow someone to plead the 5th amendment in order to hide their identity. In Hiibel v. Nevada the U.S. Supreme Court held that the petitioner did not have a 5th amendment right to withhold his name from a questioning police officer. The Supreme Court held that Mr. Hiibel could be arrested for failing to identify himself because Nevada's statute requiring identification was narrowly tailored and was not vague. The police officer who stopped Mr. Hiibel had reasonable suspicion that a crime had occurred and Mr. Hiibel could have satisfied Nevada's statute by simply stating his name; there was no requirement to turn over any papers or other documentation. The final paragraph of the opinion speaks of the importance of the narrow scope of the disclosure requirement and then goes on and states: ...Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances...Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We do not resolve those questions here. While the court is leaving unanswered the question of whether there are circumstances where one may refuse to identify themselves, they are making it quite clear that such a situation would be very different than the case decided in Hiibel. There is a strong hint that they would uphold Fifth Amendment privilege in the situation you posit. | There are two questions here: Is it really the police, or someone pretending to be the police in order to stage a home invasion? If it is the police they will be wearing uniforms and showing you their badges. I don't know how common it is for criminals to impersonate police officers. Do they have a valid search warrant? Once you have established that they really are police your best course is to stand back and let them in. Arguing about search warrants and "fruit of the poisoned tree" is a job for a lawyer later on. One option might be to quickly dial 911, put the phone down but still listening, and then open the door while saying "are you police, can I see your badge?". If they are police then no problem. If they turn out to be imposters then the 911 dispatcher should be able to figure it out and send the real police around. | I don't know about that particular case, but you are basically right: In Switzerland, if you want to apply for citizenship, you apply for it in the municipality first. Everybody having the citizenship of the municipality has the swiss citizenship as well. In theory, the canton and the state also have something to say, but that's irrelevant for most applications. This has historic reasons, but going into the details is beyond the scope of this question. Fact is, that every municipality has its own rules, about when and how applications are handled. This has been unified a bit in recent years, but some things still differ. That is for instance, how many years you need to have lived there or who decides your application. There were municipalities (actually most) where the final decision was made using a public vote. This practice was declared illegal by the federal court some years ago, because becoming a citizen is a formal governmental act, and as such a reason needs to be given for turning an application down. This is inherently impossible with a vote. Since that law decision, most municipalities have shifted the responsibility to a committee for citizenship applications. The public can still bring in arguments, but they need to be justified (ie. if somebody knows about the applicant being a wanted criminal somewhere). Consequently, you can now call for a court to check whether the given reasoning is correct and just, if you are turned down. | According to the ACLU, there are certain questions you have to answer when entering the US, and in some states you may have to identify yourself when stopped and told to identify yourself. Nonimmigrant non-citizen may be required to answer questions about immigrant status posed by an immigration officer. Otherwise, you are not required to answer questions by police. A judge can order you to answer questions, but the police cannot. Also, "obstruction of justice" covers things such as destroying evidence, assaulting a process server, communicating with a juror, and can cover investigative demands by prosecutors, but not being uncooperative with police. | While local law varies, most jurisdictions do not authorize citizens' arrests for traffic violations. Generally, citizens arrests are authorized only for misdemeanors and felonies outside the traffic code. Indeed, there are many traffic offenses for which law enforcement is authorized only to stop a violator and issue a ticket, but not even law enforcement is authorized to actually arrest someone. And there is no such thing as a citizen's citation or ticket. Citizens arrests also usually require that the citizen witnessed the crime in progress, but that requirement would be met in this case. If the case had been a hit and run, however, a citizens' arrest probably would have been legally authorized, although the wiser course of action would still be to call the police and to follow the offender at a safe distance. | In general, police have no special protection from being recorded; if it is legal to video or audio record a person in that jurisdiction then it is legal to record a police officer in that jurisdiction. Anything that it is legal to do with the recording of a person is legal even if that person is a police officer. As to if it is legal to record a person see: Is it legal to post a photograph that I captured of a stranger in the street? Model release for image without faces How do laws affect photography of non-humans in public when people may be in the frame? What are the legal repercussions of taking a stranger's picture in public? What is considered "public" in the context of taking videos or audio recordings? |
If one modifies and distributes intellectual property based on a Creative Commons licensed work, do they have any claim to their modification? Suppose someone named Alice makes a free-to-play game called "Tubbytown" and releases it under the creative commons license "Attribution-NonCommercial-ShareAlike," which from the Creative Commons website says This license lets others remix, adapt, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Now suppose the game is a big hit, and everyone is loving it, especially Bob, who loves it so much that he starts to develop expansions and enhancements to Tubbytown, all for free of course and in full compliance with the original license. But Alice has been developing her own enhancements, and they're pretty similar to Bob's. They both identified similar painpoints in the game, and they both patched them, but Bob released his patch first. Does Bob have any claim over his enhancements, even though he isn't allowed to sell them? Would Alice be prevented from coming up with enhancements to her own game if other people could prove they thought of and released the idea first? Now, I'd like to take this one step further. Let's imagine that Bob came up with some very cool and unique enhancements to Alice's game that she had not thought of, and he releases them for free because he is restricted from selling them. Could Alice outright claim Bob's "Adapted Material" because he developed it on her original work? I hope this is clear enough. | Alice has been developing her own enhancements, and they're pretty similar to Bob's. Neither Alice nor Bob has copied the other's enhancements, so neither has violated the other's copyright in the enhancements. Whether that could be proved in court is another matter, of course, but since the original work is licensed under creative commons the question unlikely to arise in court. Would Alice be prevented from coming up with enhancements to her own game if other people could prove they thought of and released the idea first? No. Copyright does not protect ideas. It only protects a particular expression of those ideas from being copied. Theoretically, if two authors come up with identical 500-word descriptions of something and can establish that each did so independently, neither has a claim against the other. The practical problem there, of course, is that it would be impossible to prove such a thing. Could Alice outright claim Bob's "Adapted Material" because he developed it on her original work? Assuming that in publishing his adaptations Bob followed the terms of the creative commons license with respect to the original work, Alice's only claim would be that he copied her adaptations without following the terms of the license. If Bob can show that he did not do so, her claim would fail. In a comment, you wrote: Suppose Alice went ahead and intentionally, somehow provably ripped off Bob's "Adapted Material" because she liked the content so much, does Bob reserve any rights on his adaptation, or is Alice able to commercialize the work that Bob did in extending her original work? If we assume that Bob complied with the license of the original material, we know that he licensed his adaptations under "the identical terms," so Alice would be able to use Bob's adaptations under those terms for non-commercial purposes. Since the assumption here is that Alice provably copied something of Bob's, I think it is fairly clear that she would be liable for damages if she exploited that material commercially without paying royalties. | The designer/company owns the copyright to the original work, you own the copyright in the derivative work (the screenshot). However, your work is subject to whatever rights your license to use the game gives you and fair use/fair dealing. An example of a company attempting to enforce copyright from screenshots/screen recordings can be seen by the Nintendo Creators Program. | No. That clause does not give other users a licence to reproduce the work (other than what is necessary to access or use it) or create derivative works. The copyright owner has the exclusive right to do those things. (See 17 USC 106.) The clause you quote only indicates that other users can "access" (download for viewing) your "information" and use it, too. It doesn't give away any of your exclusive copyright in the work. You do grant Facebook a licence to do certain things with your work in section 2.1 of the Terms of Service, though. | It doesn't make a difference if the product is free or commercial use, if it's initiated by a company or an individual. What you are considering would be a "derivative work" and without explicit permission from the copyright holder, it is considered a violation. | 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. | Both. The user made an infringing copy with the upload, the developer did with the download. Further the ToS between the app owner and the user will not protect them from being sued by the owner of the copyright. They don't have any ToS with them. | The first thing that has to be done (in court, or via lawyer-to-lawyer communication) is that The Company has to prove that they own the copyright. If they accomplish that, you can defend yourself by providing proof of a license to download and redistribute. From what I can tell, you cannot directly prove that, since the rights-holder did not give you the license. The issue is that a third party cannot impose a license on a work simply by putting it out there with a file that claims to be a license from the artist. So this brings in the Free Music Archive: they presumably have some evidence that the rights holder did indeed grant the alleged license, and may be able to provide proof. Your argument may be credible, in the sense that you had a good-faith belief that the item was so licensed, and the website would provide a basis for concluding that that belief is reasonable. If the work was licensed, then the some rights holder would know that, but not necessarily the current one. Assume the artist made a recording, transferred the rights to Company A, who later sold the rights to Company B who is now coming after you. Artist may have licensed it when it was his, and forgot to tell A. A may have licensed it when they sold the license to B. Artist may have improperly licensed it after he sold the work to A (under the "I wrote it, I have the right to do whatever I want" non-legal theory). A might have improperly licensed the work after selling the right to B (maybe by mistakenly including it in a package deal, i.e. via bookkeeping error, rather than ignorance of the law). Or, they may simply have forgotten. If this is a DMCA takedown notice, the notice-giver could just be abusing the system. But we don't know how you were contacted, so I'll leave DMCA out of this for now. | Under United States law, copyright is normally held by the creator of a work. There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is. If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be. If you're in a situation where you need to know, for example: That you are allowed to use the artwork forever, and the artist can't ask you to stop later; That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you; then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about. Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be. tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them). |
Does "insider trading" apply to private companies? In America, "pitching" to investors is how capital is often raised. What I don't understand is why this is legal: You supply private information to the investor, who decides to buy stock in your company based on this private information. Is the fact that the company is private what makes this legal? | No, insider trading doesn't apply to private companies. By definition private companies don't trade their stock on the open market. Trading on the open market provides access to an immense pool of capital (anyone with the price of a share of stock), but the trade-off is that there are many more strictures on corporate behavior and governance. Private companies have far more latitude in their corporate governance, but on the other hand they are far more limited in who they can sell stock too, typically being limited to accredited investors. Edit: It seems that in the US this answer is actually wrong, but the situation is complex. The SEC has sanctioned privately held companies under Rule 10b-5 for fraud and misrepresentation for stock transactions where material information was withheld from the other parties. Stiefel Laboratories, a privately held firm, was charged with buying back employee shares without disclosing that it had multiple offers from private equity firms to purchase stock at a higher price, or revealing that it was in negotiations to sell the company to GlaxoSmithKline. | Yes and no. [note, the following is all written about US law. In other jurisdictions laws are, of course, different (though usually not drastically so.)] In the US there are (at least) three different bodies of law that might apply to code: copyright, patents, trade secrets. Copyright covers original expression. Anything you write is automatically, immediately protected under copyright. The copyright applies to the code itself, and anything "derived" from that code. It's up to the courts to decide exactly what "derived" means. One case that's long been viewed as a landmark in this area is Gates Rubber v. Bando Chemicals. The Court of Appeals for the tenth Circuit decision includes a section titled: "The Test for Determining Whether the Copyright of a Computer Program Has Been Infringed." Note that you can register a copyright, and that can be worthwhile, such as helping recover some damages you can't otherwise. Patents are quite different from copyrights. Where a copyright covers expression of an idea, a patent covers a specific invention. Rather than being awarded automatically, a patent has to be applied for, and awarded only after the patent office has determined that there's no relevant prior art to prevent it from being awarded. A patent, however, covers things like somebody else independently discovering/inventing what's covered by the patent. A trade secret could (at least theoretically) apply to some process or procedure embodied in the code. A trade secret mostly applies to a situation where (for example) you're trying to form an alliance with some other company, and in the process tell them things you don't tell the general public. If you've identified the fact that what you're telling them is a trade secret, and they then tell a competitor (or the general public, etc.) or more generally use that information in any way other than the originally intended purpose, it could constitute a trade secret violation. As a side-note: patents and copyright fall under federal law, so they're basically uniform nation-wide. Trade secrets mostly fall under state law, so the exact details vary by state. Absent a reason to believe otherwise, I'd guess your interest here is primarily in copyright infringement. The key here would be showing that one piece of code was derived from the other. That is, it specifically would not apply in a case where there were only a limited number of ways of doing something, so anybody who wanted to do that had to use one of those ways. Since this would not indicate actual derivation, it would not indicate copyright violation. | A SAFE is basically what used to be called a "subscription agreement", i.e. an agreement to invest money in the future that will ultimately give rise to an equity investment if made. From a practical perspective, while the contract is legally enforceable, pursuing a lawsuit to enforce it is almost always a death knell level bad move. Firms who sue investors early in the game don't get future investors. The amount of time it takes to enforce such an agreement in a lawsuit is also too long (perhaps a year or two before you have money in hand if it runs its course and still many months if it settles), and the cost of doing so is too great (probably more than $40,000 that you won't get back to bring in $400,000), for it to make sense to do so at the delicate early stage of a start up. Instead, what you need to do is get on the phone with the investor, or quite possibly meet in person, at their offices or in a more casual deal making environment over drinks, for example, to figure out what is troubling them or slowing things up and how to make them happy. This is more of a function of continuing to sell the fact that you are good investment and an opportunity that they are missing out on, than it is about telling them about your legal rights. If this fails, it is probably wiser to seek financing from someone else than to force them to perform. | In the US, in general anyone can claim anything. Others are free to believe or disbelieve the claim. In theory, a person might base their decision to do business with Hilton partly on this particular claim (this is why some software companies start presentations about their new features with a Safe Harbor statement letting the audience know not to base purchasing decisions on unreleased features), and in that case they could argue that Hilton's claim damaged them by causing them to enter into a contract under false pretenses. I doubt such a case would be meritorious, but there could be some contrived situation where the point of whether Hilton owned the hotel when it invented the brownie was actually important. | united-states That is going to depend greatly on the circumstances. In the US generally anyone may express an opinion on the value or merits of an investment, indeed that is protected speech under the first amendment. However, a person with an interest in a stock or other security who publishes an opinion or statement intended to deceive people, with the further intent of profiting by the deception, may well have committed securities fraud. If the published text contains false statements of fact, known to the author to be false, or that the author knows have not been checked and might well be false, that is additional evidence of such fraud. There are other cases in which such posting of an alleged "opinion piece" might be criminal or an actionable tort. But that would not make the site illegal. It would be the specific acts by specific people that would be illegal. Only if the site were routinely used for such unlawful purposes and seemed to have no legitimate purpose would one be likely to say that the site was illegal, and even then it is a stretch. | Yes it is perfectly legal. Good luck finding investors for a such an indebted company, though. (Not disclosing the contract to potential inverstors would be illegal.) | The linked Bloomberg story quotes the rule as: The recipient is allowed to keep the funds if they [the funds] discharge a valid debt, the recipient made no misrepresentations to induce the payment, and the recipient did not have notice of the mistake. If the recipient, or somone acting on behalf of the recipient, hacked the sender to induce the payment, that sounds like a form of misrepresentation to me. If the hacker is unconnected with the recipient there seems no way that the hacker benefits financially, although I suppose a hacker might simply want to cause an amusing disruption. As I understand it this rule only applies when the sender in fact owes a debt to the recipient that the transfer pays off. If the hacker were working for one of a large group of recipients, most of whom are innocent, and subsequent analysis establishes that there was a hacker, but not who the hacker was or which of the many recipients the hacker was working for, I suspect, but cannot prove, that the doctrine would not apply, because the transfer was not a valid but incorrect act by the sender, but was a fraudulent intervention in the sender's procedures. | No, but ... The CEO is an officer of the company (as are the directors and any others with the ability to substantially exercise control over the company) and as such, owes fiduciary duties to the company - not to the shareholders or any subset of them. For example, if it is in the best interests of the company to enter a trading halt but not in the best interests of the current shareholders then the duty on an officer is to do what’s best for the company. As another example, for a crime many limited by guarantee rather than by shares it’s rarely in the owner’s interest to have that guarantee called but it might be in the company’s interest. |
Adam Schiff’s immunity from treason I’ve just read hundreds of page’s finally released of the House Intel committee & shocked to learn Adam’s claim there was sufficient evidence, compelling evidence, substantive evidence Trump & his campaign colluded with Russia to win the election. All 53 witnesses Said their WAS NO EVIDENCE, we are not in possession of any evidence, I never saw any evidence, none I ever saw, including Sally Yates, Valerie Hewitt, etc. I read interviews of the Ukraine witnesses & their texts & phone calls to each other & found disturbing calls. Sondland told vindman he’d ask that “no one record or transcribe” the phone call??? My eyes are blurred from reading & there are thousands of pages. ADAM SCHIFF LIED IN CONGRESS ABOUT EVERYTHING IN AN ATTEMPT TO GET TRUMP OUT OF OFFICE. HE WENT ON THE NEWS CHANNELS NOT JUST IN CONGRESS & LIED. HIS LIES WITH THE AID OF OTHERS ALSO LYING GOT TRUMP IMPEACHED. WHY WOULD HIS IMMUNITY ON THE HOUSE FLOOR, if evidence proved his knowingly purposefully lies, impeached a President PROTECT HIM FROM TREASON? As I read others comments it appears that debate law created for this purpose😡 | Schiff is not immune from treason - he has not committed treason. Treason, under US law: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. Even if the circumstances were as you claim, Schiff has not committed treason. | The show ignored the existing legal framework. Almost all U.S. police officers are employed by state and local governments and do not report directly to the President, even in an emergency. A small number of law enforcement officers are federal employees with a direct line of command to the President (e.g. the Secret Service and the security guards in the General Services Administration and TSA officers), but a law enforcement officer, unlike a member of the military or a CIA officer, does not simply follow the orders of the civilians to whom his superiors are responsible without the intervention of their law enforcement superiors based solely upon that civilian's whims and directions the way that a soldier would. The Secret Service has some limited authority to direct and even deputize local law enforcement officers in pursuit of their missions, but that would probably not extend to the kind of national security kill order contemplated in this episode. This said, lots of law enforcement officers are ex-military, most law enforcement agencies has a quasi-military organizational structure, and in the extreme circumstances of Designated Survivor, it wouldn't be shocking for law enforcement officers to follow their natural military chain of command intuitions rather than the law that actually applies in these situations. Law enforcement officers are personality types that are very deferential to authority which is a natural counterpart to support for their hierarchical view of the world that endows them with their own authority. There is no one in the loop to play devil's advocate for the suspected terrorist. But, strictly speaking, the proper protocol within the U.S. would be to have a CIA agent make the strike (because the military is prevented by the posse comitatus act from doing so, unless these events counted as an "insurrection" which they very well might in which case the military could be involved), rather than a law enforcement officer. Incidentally, the U.S. Supreme Court has basically held that the citizenship of the suspected terrorist is irrelevant, even though policy makers in all of the Presidential administrations since 9-11 have not been very comfortable with that state of the law and have sought to distinguish U.S. citizens from non-U.S. citizens in their own policies. | The standard of proof for a criminal conviction is the same. So they would similarly need to prove beyond a reasonable doubt to convict the foreign national of a crime. But deportation is not a criminal proceeding, and has a different standard of proof. (In deportation you also don't have criminal defendant rights like right to an attorney if you can't afford one.) I believe the standard is "clear and convincing evidence". | "I don't recall" will protect you from perjury only if it's true. Let me try an example. You're asked: "Did Mr. Blatter hand you an envelope full of cash?" You say: "Not to my recollection." Now the government introduces a videotape of you receiving and counting the money, and a thank-you note you wrote to Blatter saying "Thanks for the awesome bribe!" You can defend yourself from perjury charges if you can convince the finder of fact that you had forgotten all of those things...but it's not very likely, is it? "I don't recall" isn't a magic bullet. It's like any other statement: it's perjury unless it's true. | Would a U.S court honor his request, based on his prior commitment? You are not specifying the purpose of the court hearing, or whether Adam is pro se litigant (which sounds unlikely if this plaintiff is a movie star). If plaintiff Adam is represented by an attorney, Adam's presence is unnecessary in most or all court hearings. In fact, typically neither parties nor their lawyers have to show up in court, whence their absence does not constitute contempt of court. Absence merely implies that they miss the opportunity to [orally] argue their position before the court, and thus would depend on whether the judge bothers to actually read their brief. If you mean a hearing in which Adam needs to be present, his request to reschedule the hearing is most likely to be granted. His contract is strong evidence that his request is not a vexatious attempt to delay proceedings. Since the hearing would be in month 4, the particularity that his contract goes up to month 4 implies that rescheduling would not significantly delay proceedings. Regarding your comment, rescheduling can (and does) happen multiple times even in criminal cases. This post includes an excerpt of the Register of Actions of criminal case 16-870-FH in Michigan state court (Washtenaw county), highlighting several instances of rescheduling as requested by the defense counsel and despite prosecutor's objection. I believe the case got rescheduled a few more times beyond what the snapshots reflect. | The probable answer is right there in the article: the Kim Dotcom case has been a PR coup but a legal disaster. Mr Dotcom has not, at this time, been jailed and it may have become apparent to US and NZ law enforcement agencies that he probably never will be! It is really, really easy to accuse someone of committing a crime; it can be really, really hard to prove it beyond reasonable doubt in a court of law. So after initiating a case that has turned out to be a total disaster, why would you expect them to do the same thing a second time? | The law is really bad at protecting whistleblowers From my understanding of US law, this is not unauthorised access to a computer: the reporter made a legitimate request to a remote computer, that computer provided data,the reporter accessed the supplied data on their own computer. However, pointing out the failures of people in power is fraught even if it is not illegal. It is certainly within the Governor’s power to authorise an investigation of the reporter. On the face of the law, it seems reasonable to suspect that what was done might be a violation so there is nothing legally wrong with initiating an investigation. I suspect that such a broad interpretation of the law would fall foul of the First Amendment which may partly explain why it wasn’t prosecuted: the government doesn’t want to find out. Similarly they can issue press releases, which, due to the First Amendment, don’t have to be true, just not defamatory. Saying it’s a possible violation is true and not defamatory. Saying the reporter was an evil person who is only doing this for political purposes is a statement of opinion and not defamatory. It’s a fact of the world that people with power can use that power in ways that are malicious, unethical, and unfair but not necessarily illegal. | Is this normal? Pretty much. Witnesses lie in court all the time (in my experience, defendants, law enforcement officers and medical doctors are the most likely to lie). Dealing with a witness who lies in court under oath effectively is one of the most challenging tasks lawyers face. It is an inherently challenging hurdle to proving or defending a case. The facts as presented in court often differ in some material way from reality. It is a pretty tough thing to accurately measure, but my gut estimate would be that this happens in a least 30%-40% of cases that produce contested trials, although not infrequently, a judge or jury will not find the false testimony to be credible. On the other hand, it isn't at all uncommon (probably at least 10% of the time) for a judge or jury to believe the liars to be telling the truth, and to find the people who are telling the truth to be less credible. There is absolute immunity from civil liability for lying in court testimony, although it could, in theory, give rise to contempt of court sanctions from the judge in some circumstances, or to a prosecution for perjury. But, perjury prosecutions are, in practice, very rare, and a good share of them arise from false statements made in documents under oath, rather than from courtroom testimony. There is probably less than 1 perjury prosecution per 1000 provable lies made under oath in courtroom testimony on material issues that end up influencing the outcome in a case. I totally sympathize with how frustrating this situation is having been there in cases that I am litigating many, many times. But, in short, life isn't fair. |
Can I use the sound files, generated by the Google Cloud Text-to-Speech freely? Google sells access to their TTS service at https://cloud.google.com/text-to-speech/. They advertise that you can use it for free, if you use less than 4 million letters (1 million for WaveNet voices). I couldn't find any information regarding the license terms of the generated audio files. So, what may I do with the generated sound files? I mean often you need the same sounds again and again. May I cache the sound files? May I play them to the public? Redistribute them with my app? Offer them as a download? Sell them? To use the TTS service you have to accept the Google Cloud Platform Terms of Service (https://console.cloud.google.com/tos?id=cloud). I think the most relevant part is the following section: 5.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and the Application or Project (if applicable), and Google owns all Intellectual Property Rights in the Services and Software. | Just at the offset this does not constitute legal advice, just some opinions I have on this point. Technically, you would not be prohibited to generate speech and use it however you like. Under normal circumstances any output generated by the system that does not contravene the service agreement would be your intellectual property. This would include the text and speech generated. Once you go about the request limit you would naturally be required to pay, but until that time you can use the service as a paying customer. Just to clarify this point I would like to make reference to the service license agreement, clause 3, which make reference to the following prohibitions: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (subject to Section 3.4 below and except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for High Risk Activities; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (d) create multiple Applications, Accounts, or Projects to simulate or act as a single Application, Account, or Project (respectively) or otherwise access the Services in a manner intended to avoid incurring Fees or exceed usage limits or quotas; (e) unless otherwise set forth in the Service Specific Terms, use the Services to operate or enable any telecommunications service or in connection with any Application that allows Customer End Users to place calls or to receive calls from any public switched telephone network; or (f) process or store any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the Department of State. Unless otherwise specified in writing by Google, Google does not intend uses of the Services to create obligations under HIPAA, and makes no representations that the Services satisfy HIPAA requirements. If Customer is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Customer will not use the Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Customer has received prior written consent to such use from Google. Similarly, as specified here: Customer will not, and will not allow third parties to: (i) use these Services to create, train, or improve (directly or indirectly) a similar or competing product or service or (ii) integrate these Services with any applications for any embedded devices such as cars, TVs, appliances, or speakers without Google's prior written permission. These Services can only be integrated with applications for the following personal computing devices: smartphones, tablets, laptops, and desktops. In addition to any other available remedies, Google may immediately suspend or terminate Customer's use of these Services based on any suspected violation of these terms, and violation of these terms is deemed violation of Google's Intellectual Property Rights. Customer will provide Google with any assistance Google requests to reasonably confirm compliance with these terms (including interviews with Customer employees and inspection of Customer source code, model training data, and engineering documentation). These terms will survive termination or expiration of the Agreement. You should also take a look at this and this. However, as per the terms of the agreement the speech generated would be your intellectual property, unless otherwise specified. Good luck! | First: the real answer to your questions is "consult your academic library staff." If this is for a thesis project, then you're presumably affiliated with a college or university, and the librarians at such institutions are used to helping sort out copyright claims and helping researchers obtain the necessary clearances. There are two questions you're asking, really. Are these works in the public domain? Possibly, but not for the reasons you think. In the US, copyright in unpublished works lasts for the life of the creator + 70 years. After that, they pass into the public domain. This means that if the composer/arranger died before 1919, then the works passed into the public domain before the formal publication in 1989, and they are still in the public domain now. However, if the creator died after 1919, then their 1989 publication effectively "resets the clock" on the copyright, and they will not come into the public domain until (according to the above link) 70 years after the death of the creator or 2048, whichever comes later. What doesn't matter is that the original symphonic works were in the public domain. Even if the 1812 Overture is in the public domain, I could write an arrangement of it for accordion quintet and I would have the exclusive right to publish it and profit from that arrangement for the standard term. In your case, if the work really is a straight transcription, it might not have a copyright; but if the work required some amount of creativity and artistic decision-making (which a piano transcription of a symphony certainly would) then the arrangement gets its own copyright when it's published. Can I make transcriptions of them if I don't publish them? Probably, but you should really consult your librarians. It's entirely possible that your proposed copying would fall under "fair use"; it would be for scholarship & research and you're not planning to include the transcriptions in your final published work. On the other hand, you're talking about effectively copying a substantial portion of a creative work that is still in print, which argues against fair use. Fair use rules are notoriously flexible/vague, and so it would be worthwhile to consult with an expert on the subject (i.e., your school's library staff.) | The Current Wattpad TOS says: When you post content to Wattpad, we need the legal permission under applicable copyright laws to display that content to users of the Wattpad Services. Legally this means you give us a nonexclusive license to publish your content on the Wattpad Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). The wording is different and shorter than the Naver terms quoted in the question, but in both cases the poster grants the service a non-exclusive license to the content. Naver specifies that this includes the rights to "store, copy, reproduce, modify, publicly transmit, display, distribute, and create derivative works (only limited to translation)" while Wattpad gives the more general "anything reasonably related to publishing" and specifically includes "storing, displaying, reformatting, and distributing". The other rights listed by Naver seem probably included in "reasonably related to publishing" with the possible exception of a right to "create derivative works (only limited to translation)". It dopes not seem that the rights claimed by Naver will be very much more extensive than those already granted to Wattpad. Nothing in the Naver terms quoted says that Naver will "own" the content uploaded by users. In addition although Naver will purchase Wattpad, one news story says "Lau confirmed Wattpad will continue to operate independently" which may well mean that its TOS will be unchanged -- it is not unusual for different services of the same owner to have different TOS documents and terms. Moreover, if the Naver terms did grant Naver significantly greater rights in the content uploaded by users, it is not clear that they could unilaterally obtain greater rights in content previously uploaded without some form of consent by the uploader-owners. In short, I think the concerns expressed in the question are overstated. | This is going to depend on several things. First of all, do you have a lawful, licensed copy of the SDK? My understanding is that Nintendo only licensed the SDK to selected game companies. If what you have is an unauthorized copy, you do not have the legal right even to use it. If what you have is properly licensed, then you do. Or is what you have an unofficial SDK created by someone other than Nintendo? Secondly, what does the license agreement that comes with the SDK provide? Does it require developers to register with Nintendo? If it does, you will need to comply. Nintendo cannot prevent others from writing programs designed to run on their hardware. But they can control who uses their development software, if they choose to. You cannot reproduce in your game any of Nintendo's copyrighted software (or anyone else's) without permission. That applies even more strongly if you intend to sell the software. But you can use any development software for which you have a valid license in whatever ways its license permits. I would expect this includes creating games. It would include selling games that you create that do not use any of Nintendo's code, unless there is a specific provision forbidding that in the license agreement. | 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. | The existence of a robots.txt file and the directory and file inclusions/exclusions in a robots.txt file do not constitute a legally binding contract for the use of the website by the visitor; if it exists, the Terms of Service would usually establish the contract for use of the site. Many TOSs prohibit bots, crawlers and any automated means from crawling or scraping a site, and you are contractually obligated to honor those stipulations simply by visiting the site. Violating a TOS is typically a civil matter, depending on jurisdiction. Simply crawling a site to "map" it, and crawling a site to "scrape" it and copy all content are two different things. Crawling could violate the TOS. Scraping content can violate the TOS and also be copyright infringement, depending on jurisdiction. See https://law.stackexchange.com/search?q=scraping I suppose a TOS could state that users are legally bound to the restrictions in a robots.txt, but I've never seen that in a TOS. | Go to court and find out There is no doubt that humming a tune and recording it (or performing it in public) is a derivative work - a right reserved to the copyright owner. Whether it is fair use depends on the specifics of the case. From the tweet, we simply don’t have enough information, however, at a guess, it is probably not fair use. Fair use in law is Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Most people miss “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” - if you aren’t doing one of those things then you start behind the 8-ball when yo move to the 4 factor test. Note that the “criticism, comment, news reporting,” etc. must be about the copyrighted work - I can’t use your copyrighted work to, for example, parody a politician unless you are that politician. Many people have completely the wrong idea about what copyright infringement and fair use actually are, in part because the use of music on YouTube is allowed, not because it’s fair use but, because YouTube was smart enough to negotiate and pay for a permissive licence with music producers. For a full explanation, see this video. | Generally, no, this will not violate copyright. Your end user might violate copyright, but that is their problem not yours. Your program is a tool, just like a word processor is. If I copy a Harry Potter book into a word processor that does not make the word processor maker liable. There is a concept of "contributory infringement", which I think is what you are concerned about. I don't know about Danish law in particular, but most countries would require evidence that you had reasonable knowledge that actual copyright violation was occuring, rather than just being aware that it might happen in theory. This is normally applied to file sharing services who have to have "notice and takedown" measures, file filters and the like. This isn't your concern as you never have any access to the files created by your users. You can also be found liable if you induce anyone to commit copyright violations. Don't draw your customers attention to the custom monster feature as a workaround for those copyrighted monsters, as that could be considered to be inducement. Also don't provide any "wizards" or similar tools which make it noticeably easier to duplicate the custom monsters (e.g. if you notice that the copyrighted custom dragon stats are all on a linear scale with dragon size, don't create a "dragon creation wizard" embodying that fact.) This assumes that your program runs entirely on the end user computer. Its different if you provide any kind of cloud storage for generated characters. |
Is a patient legally obligated to pay for non-emergency medical services that were not requested by the patient? Is a patient required to pay for non-emergency services they did not request from a medical provider? For example, a radiology clinic takes an x-ray and then sends it to a 3rd party radiologist for interpretation without the patient having requested any analysis of the x-ray nor having participated in the selection of the third party who would perform the analysis. I view this as the medical equivalent of cleaning someone's windshield at a red light without them asking for it and then demanding money for the windshield washing service. If that's not so, why is the medical industry treated differently than other services such as painters; if I asked someone to paint my house, and then they also decided to paint my shed without me asking, no one would expect that I be obligated to pay the painter for painting my shed. I understand that in emergency medical situations, it may be implied that the patient cannot consent or decline services, so it is by default considered to be agreed to. This question is about non-emergency services only. | Presumably you consented to have an x-ray. It is a reasonable assumption that it was not your intention to simply be given the films without interpretation by a radiologist. If that was your intention then the obligation would be on you to make that clear since it is so far from ordinary practice that no reasonable person could know that. To use your analogy it would be like you asking to have your window washed but not wanting to have the soapy water rinsed off afterwards (assuming these were separately billable services). Further, rights and obligations under contracts are transferable by default. So it is perfectly legitimate for the lab to outsource the radiography without having to ask you. | No one is required to have Public Liability Insurance If a contractor (or householder) wants PL insurance they are free to take it out but there is no legal requirement to do so. There may be contractural requirements. For example, a mortgagee may require a mortgagor to have property insurance and PL usually comes bundled with this (but check your policy because it may not be so). Or a householder principal may require their contractor to have PL insurance but a wise principal also requires evidence of cover. Whether a person has PL insurance or not, they can be liable to the public for damage. Insurance does not remove liability, an insurer just indemnifies their insured from the costs of defending or settling a claim. Liability In general, the head of claim for liability is typically negligence. Whether a person is negligent depends on if they had a duty of care and failed in that duty among other things (see Is there liability for pure accidents?). The contractor could be liable. The householder could be liable. Both could be liable. Neither could be liable. In normal circumstances, a plaintiff will sue everyone they can think of. At that point, it would be nice to have insurance so you can say to your insurer: "You deal with it." | Can individuals spend money acquired in settlements that include an NDA? is the party that receives the payment allowed to actually use it? Yes. Payment of a substantial sum is oftentimes the main or only incentive for the injured party to bind himself in an NDA. A prohibition to spend that money would de facto nullify the benefit without which the party would have declined the NDA. Sandman isn't otherwise wealthy, if he suddenly buys a Lamborghini or a private jet, that money must have come from CNN. So doesn't this violate his NDA? No, typically it does not. Depending on (1) who the parties are, and (2) the hitherto divulged details of the controversy, the public might infer anyway --and with reasonable certainty-- who must have paid a substantial sum to settle the dispute. Thus, plaintiff Sandmann's [hypothetical] purchase of luxurious items would not really provide the public with new information. Similarly, if instead of buying luxurious items the indemnified person spends that money on rather necessary expenses (be it medical, property & casualty, etc.) ensuing from the injury, a prohibition to spend the money would lead to another absurdity: That of perpetuating or worsening the harm inflicted to the plaintiff who couldn't otherwise afford medical treatment, new living arrangements, or repairs/replacement of property, accordingly. If the payer thinks it is important enough, perhaps the NDA could include terms requiring the payee to use some extent of discretion as to the pace of spending the money. However, such need on the payer's part seems rare, and the injured person is likelier to decline the NDA altogether if the clauses for management of the compensation are unreasonable. What counts as disclosure with regards to Non-Disclosure Agreements? Any revelation, by the parties, that contravenes the terms and purpose of the NDA in that it would give non-parties information which cannot be ascertained from prior and/or independent publications and filings. That is otherwise hard to answer because it totally depends on the terms --and boilerplate-- of each NDA. | Hardly ever While all doctors in private practice has a contract with each of their patients: For most practical purposes clinical negligence lawyers can forget about these. It is not that contractual duties do not exist – all private medicine and surgery is performed pursuant to such duties – but that they rarely add anything to the parallel duty owed in tort. The courts have been very reluctant to imply a duty in contract which goes beyond the duty imposed by the common law of negligence. While tort damages aim to restore the plaintiff to the position they were in before the tort and contractural damages aim to place them in the position they would have been in had there been no breach, for medical malpractice there is no practical difference. | It is not insurance fraud to sell medical equipment which was paid for by an insurance company. Unless it was obtained fraudulently of course. Two warnings that probably do not apply to breast pumps: Make sure that you actually own it. Sometimes equipment is leased; the patient does not own it. Make sure that it is not a prescription item. You can't sell items which require a prescription. | It means what it literally says, that safety and effectiveness have not been established in certain contexts. The rationale behind saying this is §201.57 of 21 CFR 201, a regulation that mandates giving warnings. It is permitted to use a device or prescribe a substance where it is not yet proven that it is effective or safe for that usage, but you must not imply that it is perfectly safe and effective in all contexts. This part of the federal regulations dictates language aimed at particular scientific uncertainties. Insofar as a patient is expected to give informed consent for a treatment, informing the patient that a treatment is to some extent unproven is an essential part of the information that must be given for informed consent. So you can interpret it as a flag to the patient (or the prescribing doctor) that there is greater risk. | The answer by @Digital fire is not always correct. Some states have passed general-purpose "duty to rescue" statutes. The one I've been trained about is Vermont's (Cite as: 12 V.S.A. § 519) § 519. Emergency medical care (a) A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or herself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others. The statue goes on to provide good Samaritan protection and state the penalty for violating the statute: a fine of not more than $100. Digital Fire does refer to the Wikipedia article about a duty to act/rescue, but the lead of that article says it is referring to torts, that is, whether the person who wasn't assisted (or his/her estate) could bring a lawsuit against the person who didn't help. But the Vermont statute creates an offense with which the suspect could be charged in a criminal trial. | You sat in the chair, you agreed to the treatment. By doing so you implicitly agreed to pay the dentist his fee. Now, the price was not agreed beforehand so the exact amount is subject to negotiation. This negotiation is usually best pursued when you have the fillings in your teeth and the money still in your wallet - this is called "leverage". The amount that your insurer reimburses you is a matter entirely independent of how much you pay your dentist. However, the difference in your ability to recover the costs are a valid point to raise in your negotiation. |
Are there any HIPAA like technical requirements in EU for developing health related web software? It looks like in the USA developers adhere to HIPAA standards when developing and hosting health-related software. But I can't find anything similar to the EU. GDPR is all about being transparent and asking for consent and there nothing about any technical requirements that I must follow legally. Does that mean I don't need all these expensive HIPAA hosting solutions? And can just get away with a GDPR compliant approach? Maybe, there is another HIPAA like standard for the EU? I'd love to read about it. My goal is to make sure our customers feel safe sharing health-related data with us through our web application. This web application collects some health-related data, stores it and analyses it. Everything will be done through the website (Wordpress based). | In France, one needs to ensure that the medical application respects the Code de la Santé Publique (CSP). https://www.cnil.fr/fr/quest-ce-ce-quune-donnee-de-sante (mirror) gives an overview of different CSP laws pertaining to medical data. dispositions relatives aux référentiels de sécurité et d’interopérabilité des données de santé (art. L. 1110-4-1 du CSP) ; dispositions sur l’hébergement des données de santé (art. L. 1111-8 et R. 1111-8-8 et s. du CSP) ; dispositions sur la mise à disposition des données de santé (art. L. 1460-1 et s. du CSP) ; interdiction de procéder à une cession ou à une exploitation commerciale des données de santé (art. L. 1111-8 du CSP, art. L 4113-7 du CSP) Google Translate: provisions relating to the security and interoperability standards for health data (art. L. 1110-4-1 of the CSP); provisions on the hosting of health data (art. L. 1111-8 and R. 1111-8-8 and s. of the CSP); provisions on the provision of health data (art. L. 1460-1 et seq. of the CSP); prohibition to proceed with a transfer or a commercial exploitation of health data (art. L. 1111-8 of the CSP, art. L 4113-7 of the CSP) In my experience living in France and the US, CSP is more strict than HIPAA. E.g. medical professionals in the United States keep selling patient data to commercial, private entities (mirror), which would typically send you straight to jail if you were to do so in France. | The cookie consent requirement comes from the ePrivacy Directive, not from the GDPR. While the GDPR defines consent, cookie consent is required regardless of whether the cookie actually contains personal data. Instead, it says we can access information stored on an end users device under the following circumstances. Technical access to the information is used for the sole purpose of performing a transmission over a network, e.g. using a browser cache. Accessing the information is strictly necessary for providing a service explicitly requested by the user, e.g. session cookies or a consent-declined cookie. The user has given consent to the access, where consent is defined by the GDPR (freely given, informed, specific, …). The first scenario likely doesn't apply because your cookies aren't likely to be “technical storage or access” in the sense of ePrivacy, and because the tracking cookies wouldn't be used for the sole purpose of carrying out a transmission. The second scenario doesn't apply because tracking cookies are not strictly necessary to interact with the webshop, as evidenced by the possibility to opt out. The service explicitly requested by the user is the webshop or website, not the A/B testing. This only leaves consent as possible grounds for storing or accessing information on the user's device. It is already the storing or access that is covered by ePrivacy, not only later use as a persistent identifier. Your suggestion – to first set the cookie and then delete it if it shouldn't have been set – is more compliant than many set-ups I've seen, but is still technically non-compliant. It is also likely to fail in practice under non-ideal network conditions: if the request to see whether GDPR applies times out, or if the user closes the browser tab before the cookie will be deleted, the tracking cookie will remain without consent. I would instead suggest to consider the following points. It seems that by itself, Optimizely Web cannot be used in a compliant manner since it doesn't provide sufficient control over how cookies are managed. Thus, you should avoid loading such tracking scripts unless consent has been given, or unless this processing falls outside of EU/UK law. Currently, you defer loading of tracking scripts until you know if you have to ask for consent. This can be avoided if you always ask for consent :) This can also be avoided if you load the tracking scripts from a server that can independently determine whether the requests comes from the EU. For non-EU requests and for users with opt-in, the server can return the original tracking scripts. Otherwise, the server returns a dummy script. This server can be independent from your website's hosting. By combining the jurisdiction decision with the loading of the script, one roundtrip is saved and latency is reduced. Finally, no one is forcing you to use Shopify, and ePrivacy/GDPR is not required to accommodate their limitations. You do have different choices: use Shopify, at the cost of slow pages and limited A/B tests use a different A/B test provider that can be used without setting cookies use edge computing to do stuff in between of the browser and the original server use a different webshop platform ignore EU laws Well, one of them is clearly unethical. But you do have choices, and which choice you take is a business decision. Slow pageloads and consent banners are likely costing you conversions, but Shopify might be providing massive value that outweighs all that. | Its special personal information The GDPR uses “special” not “sensitive”. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited. | In my opinion, this should be enough. The GDPR regulation is general - it does not attempt to address these issues directly, precisely for the reasons we see here: You can never predict how the technology will develop. When interpreting the GDPR, we must keep the intended goal in mind. What is the purpose of the "right to erasure"? To prevent anyone from further processing the personal data. If you "crypto-shred" it, it can't be processed anymore, not even theoretically. The encryptec file cannot be used to identify the subject, therefore it is not even personal data anymore. In case it can be decrypted in the future... Well, that is just a speculation. The courts can go to great lengths in interpreting what personal data is (dynamic IP address is considered personal data, since it can be linked to a person by the police with a court order), but i am pretty sure that "it can be theoretically possible in some distant future" is beyond the limit. As for the second question, I am not aware of any applicable case-law, but I guess that current security and technological standards will be used to assess the delay. You have a right to protect your data, the subject has a right to erase them. Those rights must be balanced, neither fully overrules the other. The delay should be short enough so the right to erasure is effective, and it should not extremely long compared to other (economically viable) backup solutions available, in line with current industrial standards. | HIPAA applies to covered entities Which, broadly speaking are entities that provide health care in the USA regardless of where they might be based. The nationality of the patient is irrelevant. | Term 1 isn't going to hold up, but that is not a GDPR matter. It's just a matter of basic consumer protection law in the EU. You can't offload responsibility for your mistakes. Looking at 2, Dale M. already pointer out that it's now how the GDPR works. You are the Data Controller. X,Y and Z are Data Processors. Article 28(1) of the GDPR is in direct conflict with your disclaimer. You accept zero responsibility, the GDPR says you are fully responsible. That's the exact opposite. | Sure, you can make such a request, but its not likely to help you. Scammers are criminals and don't generally care about GDPR compliance. Scammers are criminals, and won't just publish their real world identity. Serving them with a lawsuit will be difficult, especially if they are from outside the EU. GDPR lets you sue data controllers, but it's not worth it. You can sue for compliance (e.g. to compel fulfillment of your access request), and you can sue for damages stemming from GDPR violations. Compared to the damages you have suffered, a lawsuit is very expensive. | The information in telephone books is public. so are postal change-of-address records. So are records of the ownership of real estate. So are vital statistics such as birth records. So are voter registration lists -- i myself purchased a voter registration list (in digital form) for a municipality which showed people's names, addresses, and the years when they voted, when I was a political candidate for local office in NJ. It cost about $100. I believe that many states also make driver's license information available for a fee to marketers. Credit records are available for certain limited purposes, also. No doubt there are other public sources I haven't thought of. If such a site relies on public records, or other publicly available data, it is not illegal. Many such sites offer to remove names on an opt-out basis, but there is no legal requirement that sites do so. This kind of information is not considered nto be "private facts" under US tort law. Aside from opting out, if the sites provide that option, I don't think you have any recourse. One could ask the local legislature to pass a law prohibiting such sites, or making them require consent, similar to the GDPR that the EU has. But I don't know of any such law in the US to date. |
What is the equivalent to "fair use" in Europe? I'm preparing to publish an open source library. In order to research local law, I wanted to know if there is an equivalent term for the USA "fair use" in European law? | The United Kingdom and common-law countries generally use the concept of fair dealing. The EU doesn't really have a doctrine analogous to fair use. Instead, it has a list of explicitly permitted uses (Article 5 of the Information Society Directive), and its courts are generally very resistant to the adoption of fair-use analyses. | Sure, you can. But if you, from the US, contract with and pay someone outside the US and then use the results of that effort - the reverse-engineered code, either directly in violation of copyright or to find workarounds - within the US, you may not be culpable in a criminal sense (depending on different jurisdictions and trade/IP agreements), but you certainly would be liable in a civil sense. If the US based software developer (I assume a US-based software company, as you said "outside the US") tracks you down, they can open a civil action against you for any damages they want to claim, including theft of IP, loss of profits, EULA violations, and on and on, because you posses and are using reverse engineered code. How much money do you have to lose? | 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. | Probably not I think this question represents a misunderstanding of the linked article, and in any case of the specifically US doctrine of fair use. Fair use is always based on a part of a copyrighted work copied without authorization. If there was authorization, there would be no need to resort to the defense of fair use. The article discusses the commercial use of short sections of musical works used for commercial purposes. It points out that the idea that any use of an excerpt of less than 30 seconds is permitted is a myth. In this it is correct. While the amount of a copyrighted work used is one of the four factors to be considered in deciding wither a use is a fair use, it is not the only one, and no specific amount is always permitted. In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) The US Supreme Court held that quotes amounting to about 3-400 words from a 500-page book were an infringement, and were not a fair use, because they were the "heart of the book". The linked article says that one should ask "Was the work obtained from a legal source, in a lawful manner?" and asserts that "taking a copy from an unapproved source invalidates fair use." Nothing in 17 USC 107 says this, and I don't know of any authoritative source for such a statement. The article also says that "Commercial, for-profit use is not fair use, while commentary or criticism may be." This is simply incorrect. While a commercial purpose tends to weigh against fair use, it does not preclude it, and commercial use has been held to be fair use in some cases. Even in the case of Harper & Row v. Nation Enterprises linked above, fair use was seriously considered, and was not denied simply because the use was commercial. No one o0f the four fair use factors is final taken alone. I do not think the linked article is a reliable guide to US copyright law. In the case described by the question, an unreleased game has been distributed without authorization over the internet, and reviews written based on that unauthorized copy. Whoever copied the game committed copyright infringement, but a suit might not provide substantial damages unless actual economic harm could be demonstrated. (And, of course, the identity of the infringer would need to be proved.) But a review based on such a leaked copy would not necessarily be an infringement. If the review described the game, but did not quote any of its dialog or other text, and did not reproduce any sounds or images from the game, there would be no infringement. If the review did quote from the unauthorized copy, the usual fair use analysis would apply. The fact that the copy had been unauthorized would not determine the outcome. Fair use is defined by 17 USC 107. This provides: 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 criticism is one of the specified purposes for which fair use is designed, and an unpublished work is still subject to fair use. If the review quoted so much of the game that the potential market for it was harmed, that would weigh against fair use, but it is hard for me to see how a mere review could do that to an interactive game. (17 USC 107(4)) is normally applied when an infringing copy serves as a replacement for the authorized version, and sales are lost as a result. I suppose it might be argued that a bad review that was a direct result of an infringement came under this provision, but it is a strech at best, and US First Amendment considerations would tend to prevent such a ruling. In short, it seems unlikely that any normal review would be an infringement, and that the game was leaked would not make it one. | Copyright law is a country-by-country matter. Most countries are signatories to the Berne Convention, which provides a common framework, but there are still variations, generally in the duration of copyright or the definition of copyrightable material. According to the Hirtle chart, a video game that was first published in Europe in the year 2000 and subsequently published in the United States is still copyrighted in both the United States and whichever European countries it was published in. It is likely to be a work of corporate authorship, so the US copyright will expire on January 1, 2096 (unless a law extending the duration is passed). In the United States, the requirement to register a copyright was eliminated in 1989 as part of the Berne Convention Implementation Act; registration still provides benefits when filing a copyright-infringement lawsuit. Most European countries eliminated their registration requirements much earlier, if they had them at all: the Berne Convention dates from 1887. Copyright does not simply cease to exist when the owner does, or if the owner cannot be determined. The difficulty of tracking down copyright holders for old or little-known works is the driving force behind orphaned works legislation. There are no orphaned works laws in the United States, and since copyright is country-by-country, European laws won't help you if you're interested in publishing in the US. In order to track down the copyright holder, you'll need to figure out who originally held the copyright (probably the publisher, but it could be either development company, or both, or the game might be a collective work of the individuals who worked on it). If it was a work of corporate authorship, and none of the game-copyright sales mention it, copyright will have been transfered when the company owning the copyright was sold (as part of a general "and all intellectual property" clause). | 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. | The length of a literary work doesn't determine if its use is fair use. Copyright does not cover names, titles of works, catchwords/catchphrases/advertising slogans etc. or lists of ingredients (like in a recipe or chemical instructions), however, the procedure can be copyright. The work must also be original. If the tweet copies something that already exists then there is no copyright in the tweet - if the thing that is copied has copyright protection then the tweet itself may be a violation. That said, assuming that the Tweet enjoys copyright protection, the owner will be the author: presumably the owner of the Twitter account. For anyone else to legally use it, the use must be either: Licensed by the copyright owner Fair use (USA) or Fair Dealing (most everywhere else in the English speaking world) For Item 1, the Twitter terms of service say: You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). In case you don't know what that means, Twitter gives you this plain English summary: Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same. So, you can get permission from the copyright holder or from Twitter. Well, Twitter has given permission: Except as permitted through the Twitter Services, these Terms, or the terms provided on dev.twitter.com, you have to use the Twitter API if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Twitter Services or Content on the Twitter Services. Providing you use their API, you can "reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the ... Content ..." Therefore, fair use/dealing considerations are irrelevant. | 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? |
Online version of the "Risk" board game I am in the process of creating an online version of a popular board game. The rules of the game are taken from a version in a particular language. The game would be completely free to play and all of the graphical components were produced independently (although very similar to the original ones). The name of my game is different from the trademarked name, but the game rules are almost identical to the original board game. Is this legal? What are the risks I would incur if I decide to make it publicly available? Note: This question si diffent from "Does reproducing a board game as a video game violate copyright?" since it is specific to the game of Risk. Moreover, it explicitely asks about the legal consequences arising from distributing such an online game. | Intellectual property law varies considerably by jurisdiction, and doesn't just involve copyright, but also trademarks, and patents. The first problem you are going to run into is that "Risko!" is probably protected as a commercial trademark rather than copyright. In the US at least, making minor changes to a trademark generally doesn't get you off the hook for unlicensed use. The owner of the "Risko!" trademark could bring suit against you for trademark infringement and it would be up to a judge or possibly a jury to decide whether "Risko" is different enough from "Risko!" that confusion would be unlikely. If they won the suit they could collect damages and their legal costs. There was a protracted and important trademark lawsuit in the US over the names "Monopoly" and "Anti-Monopoly" for board games. An economist, Ralph Anspach, had introduced a game he called "Anti-monopoly". He was sued by the Parker Brothers company for infringing on their trademark for "Monopoly". After 10 years the US Supreme Court ruled in Anspach's favor, finding that "Monopoly" had become a generic term for a type of board game and was no longer a valid trademark. You can't necessarily count on being "small potatoes" so that they'll simply ignore your possible infringement. In US law, failure to enforce their trademark rights can lead to the loss of trademark rights and remedies, so companies are less likely to let minor infringements slide. The situation in Italy may be different. Your artwork and graphical components are another potential problem. Those probably are covered by copyright. Again, the holder of the copyright for the "Risko!" artwork could sue you for violating their copyright on the artwork. A judge or jury would then evaluate whether your artwork was "derivative" of the "Risko!" artwork. If the court finds that your artwork is derivative, you might have to pay damages and legal costs. There are actually a ton of Risk inspired games already available online, but they seem to stay away from names that sounds anything like "Risk" and anything that looks like the Risk artwork. | Whenever there is a license to share things, the license creator wants the license to be widely used, but absolutely does not want slightly different licenses that could be used to trick people, or that just cause legal problems when used. Normal copyright law applies. And for the reasons above, the GPL license as an example allows you to copy the license verbatim but absolutely doesn’t allow you to make any modifications other than changing who is the person licensing a work. I would be curious what happens legally if someone licenses something with a sneakily modified copy of the GPL and then makes claims against a licensee who assumed it was the original GPL. | If I lock you in a room without access to anything and tell you "Write a novel" and you write a novel with characters, you have copyright in the work. But it's not absolute: If you use your own characters, you own all the copyright in the work, but not in the idea, as ideas are not copyrightable, see Feist v Rural. If you use someone else's characters extensively (as in more than a short hommage/cameo), you very likely make a derivate. You own a copyright in your part, as in the expression of the story or pictures you created, but you do not gain property interest in the existing characters' expression. Since the copyright to the characters lies with the owner of their IP, you need their OK to release (and also to even make) your work - as with the owner of a copyright is the sole right to decide on distribution and creation of derivates under 17 USC § 106 (2). Also remember that making an unlicensed derivate work risks having nothing you can sue for in case the original copyright owner lifts your ideas and scenes-a-faire parts and adapts them for their own derivate, see Anderson v Stallone The strange case of fanfiction chains... Now, there is a strange situation when a work is based on a work which is based on a work... Then, publishers and editors start with red ink and the result is, that what people know as Twilight now has nothing to do with the fanfiction it started as (It wasn't Vampires in the original draft), and 50 Shades of Grey ended up striking any and all supernatural from it, despite it having been a Twilight fanfiction originally. By making own characters and own expression of the world, there could be no copyright infringement. US law vs Egypt law? Both Egypt and the US have signed the Berne convention, meaning that copyright is very very similar in the broad strokes that the right to allow or disallow derivates is with the copyright holder. Also, since Ben10's copyright owners are to the best of my knowledge in the US (Cartoon Network Studios & Men of Action Studios), they will sue in a US federal court. | I believe the author has published it online. I agree. It is posted at his publisher's website. However, I am unsure if I'm allowed to read it. This answer assumes you are in jurisdiction whose copyright laws is based upon the Berne convention (i.e. the civilized world + USA). Assuming it was the author published it online, it is perfectly legal to read it. Technically, the author is performing his work by putting it online, and by reading it, you are just enjoying his performance. Also, if you are in a jurisdiction with an explicit exception from copyright for personal use, or where fair use allows making copies for personal use, it would also be legal to download it, or to print it on paper (but for personal use only). As for downloading and printing for non-personal use - that is not legal in Berne jurisdictions. | Does a situation like this constitute breach of contract and/or a violation of advertising laws? No. There is not enough information that would lead to a finding of either. It is unclear how customers would be allegedly affected (if at all) by the release of a product at a different store, let alone where the goods or services at issue are digital and require no physical presence at a venue or premise. Except for very specific factual circumstances, a change of sales venue would hardly be cognizable as deceptive or unfair practice. Also, prior to purchasing or reserving a game, there is no contract between the public and the developer/supplier. Potential customers typically are not entitled to a specific performance by the developer. Even if [Phoenix Point] supporters' decision were provably based on the prospect of release at Steam, your description nowhere reflects that there was a mutually conscious exchange (or promise of an exchange) of considerations involving the parties' support of a game and the counterparty's release of the game at a specific venue. Absent that meeting of the minds, either party's reliance or expectation on the other is irrelevant. Generally speaking, the sole cruciality of either party's motives does not create legal obligations. | First, copyright does not apply to "brands". Copyright exists in literary works which includes art - a picture (any picture) usually has a copyright belonging to the creator of the picture. Brands are protected by Trade Marks. To be clear: A picture of you is protected by copyright belonging to the creator The phrase "Mickey Mouse" is protected by trade mark belonging to the Disney corporation A picture of Micky Mouse is protected by copyright and trade mark. (when) would it be legally OK for me to do so without the copyright owner's permission? You can use copyright material without permission if you meet the fair use criteria in your jurisdiction. You can use trade marks if there is no risk of people confusing your goods and services with the trade mark holder's and you do not cause damage (including loss of potential income) to the trade mark holder or it is fair use (e.g. you are writing a review of a Micky Mouse cartoon). Is it legal if I do not distribute them to others at all? No, this would be OK as copyright fair use, but not as trade mark fair use. Is it legal if I give them to my family/relatives for free, e.g. as a gift? No, not fair use for either copyright or trade mark. Is it legal if I give them away to others for free (meaning I'm losing my own money on them)? No, see above. Is it legal if I sell them to others at-cost (i.e. for the same price I obtained them, meaning I'm not making any money from them)? No, see above. If the answer is "yes" to any of the above, can the copyright holder explicitly prohibit me from doing so, or would such a prohibition be unenforceable (e.g. if this would be fair use)? It isn't allowed. Yes they can stop you. No, it isn't fair use; there is no "fair use" defence for trade mark infringement here - you are depriving them of income because you are not buying their T-shirt! Any other factors that are relevant but which I'm forgetting? Will they sue you for doing these things? Probably not. | united-states The flowchart included in the question is trying to summarize a rather large amount of legal uncertainty into one image. It must be emphasized that each decision point represents an unsettled area of law. Nobody knows which path through that flowchart the law will take, or even if different forms or implementations of AI might take different paths. The short and disappointing answer to your question is that nobody knows what is or isn't legal yet. To further elaborate on each decision point: The first point is asking whether the training process requires a license at all. There are two possible reasons to think that it does not: AI training is protected by fair use (see 17 USC 107). This is a case-by-case inquiry that would have to be decided by a judge. AI training is nothing more than the collection of statistical information relating to a work, and does not involve "copying" the work within the meaning of 17 USC 106 (except for a de minimis period which is similar to the caching done by a web browser, and therefore subject to a fair use defense). The second point is, I think, asking whether the model is subject to copyright protection under Feist v. Rural and related caselaw. Because the model is trained by a purely automated process, there's a case to be made that the model is not the product of human creativity, and is therefore unprotected by copyright altogether. Dicta in Feist suggest that the person or entity directing the training might be able to obtain a "thin" copyright in the "selection or organization" of training data, but no court has ever addressed this to my knowledge. This branch can also be read as asking whether the output of the model is copyrightable, when the model is run with some prompt or input. The Copyright Office seems to think the answer to that question is "no, because a human didn't create it." The third decision point is, uniquely, not a legal question, but a practical question: Do you intend to distribute anything, or are you just using it for your own private entertainment? This determines whether you need to consult the rest of the flowchart or not. The final decision point is whether the "output" (i.e. either the model itself, or its output) is a derivative work of the training input. This would likely be decided on the basis of substantial similarity, which is a rather complicated area of law. To grossly oversimplify, the trier of fact would be shown both the training input and the allegedly infringing output, and asked to determine whether the two items have enough copyrightable elements in common that copying can reasonably be inferred. | united-states Under US copyright law blank forms generally do not have copyright protection, because they do not have sufficient originality to quslify for copyright under the doctrine of Feist vs Rural. According to the US Copyright Office Circular 33: "Works Not Protected by Copyright" (pages 3-4): Blank forms typically contain empty fields or lined spaces as well as words or short phrases that identify the content that should be recorded in each field or space. Blank forms that are designed for recording information and do not themselves convey information are uncopyrightable. Similarly, the ideas or principles behind a blank form, the systems or methods implemented by a form, or the form’s functional layout are not protected by copyright. A blank form may incorporate images or text that is sufficiently creative to be protected by copyright. For example, bank checks may be registered if they contain pictorial decoration that is sufficiently creative. Contracts, insurance policies, and other documents with “fill-in” spaces may also be registered if there is sufficient literary authorship that is not standard or functional. In all cases, the registration covers only the original textual or pictorial expression that the author contributed to the work, but does not cover the blank form or other uncopyrightable elements that the form may contain. A trademarekd name or logo could be used nominally to show compatibility with the trademarked product, such as: This character sheet is compatible with the game "GreatRPG"(tm) and is suitable for recording characters to be used in that game. However these sheets are not made, approved, authorized, or sponsored by Heartland Mages, who own the trademark "GreatRPG". They are a product of "MySheets" which is in no way affiliated with Heartland Mages. Used with that sort of disclaimer, there will be no trademark infringement. And of course if the name and/or logo of the RPG is not used at all, there wiull also be no infringement. However, if the name of the game is used in advertising the sheets, or on the packaging of the sheets, it should be made clear to any consumer that the sheets are not authorized by the maker of the game. A disclaimer similar to the above serves this purpose. If reasonable people could be confused into thinking that the sheets came from the makers of the game, or were approved by the makers, there might be a valid action for trademark infringement. |
Cookie laws: Do I have to show a banner for technical cookies? I am aware that technical cookies don't need consent, only marketing cookies need consent. However, if my site only uses functional cookies, do I still have to display a cookie banner that says what the cookies are used for? | There doesn't seem to be any legal requirement to show banners to announce the use of strictly necessary cookies ("functional cookies"). However, the GDPR's transparency principle requires you to disclose the purpose and legal basis for all processing of personal data. This could be done via a banner, but more commonly via a site-wide privacy policy. The GDPR requires such information to be provided at the latest at the time when personal data is collected. A layered disclosure approach could use banners to alert visitors to the privacy policy, but I'd want to avoid this to prevent confusion with non-compliant consent banners. Of course, GDPR only applies when the cookies are used for processing of personal data. Cookies are handled more specifically by the EU's ePrivacy directive, for which each country has it's own implementation. You should therefore check with local laws and guidance from your local data protection agency. | No, it's not legal. The General Data Protection Regulations (GDPR) apply given that you are in the UK (regardless of where the Data Processor is based). The UK GDPR is slightly modified due to Brexit, but the same principles apply. The only plausible legal basis for this actions would be that you consent to it, and you're entitled to withdraw that consent at any time. Some may claim that Article 6.1(b) applies, i.e. that it's necessary to send marketing email in order to fulfil the contract, but GDPR is clear that bundling such consent into a contract for service simply to permit the data processor additional actions isn't allowed, as I'll demonstrate. UK GDPR requires that consent to use your personal information (in this case, your email address) for the stated purpose be freely given. Consent to use your information for direct marketing is not freely given if it's inseparable from the consent to use it for some other service, as per para 43: Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. And Article 7.4 backs this up with 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. The intent of Article 6.1(b) is that only the processing required for the service you have bought is allowed (e.g. if you supply your address for delivery of stuff you've bought, the data processor can use that address to send you the stuff, but is not allowed to add a contract term that allows them to send you unwanted stuff). Examples of emails that Article 6.1(b) would allow (in my assessment) include things such as notification of upcoming downtime, or a reminder that subscriptions are due, but not unsolicited advertisements for other products. There's a grey area that's open to interpretation, where adverts are piggybacked onto actual service messages. | No, you do not need to show a privacy policy just for running a publicly accessible server, as long as any traffic data such as IP addresses is only used as strictly necessary for providing the service requested by the user. The background here is that while GDPR is a very general law, the ePrivacy directive (ePD) provides more details for telecommunication and information society services, which also includes SSH servers. Per ePD Art 6, traffic data may be used (1) for the purpose of the transmission/service or when the data has been anonymized, (2) for billing purposes, or (3) for marketing or value added services, when the user has given their consent. Information about the processing is only required under ePrivacy for cases (2) and (3), but not for processing that is strictly necessary. Now the tricky question is under what circumstances you can log (failed) log-in attempts or use tools like fail2ban. One argument is that such measures are strictly necessary to ensure the security of the communication, but these measures are evidently not necessary for performing the transmission in the sense of ePD. There are a few ways to resolve this: necessity has to be interpreted more broadly, and security measures are indeed necessary. For example, ePD Art 6(5) mentions fraud detection, without authorizing it explicitly. an IP address is effectively anonymized in the sense of the ePD since you do not realistically have means for linking the IP address to any particular person. This is a fairly weak argument, but could be supported by GDPR Recital 26 which defines anonymous data. Counterpoint: IP addresses are online identifiers which are explicitly included in the definition of personal data in GDPR Art 4(1). an IP address is not just traffic data that falls under the ePD, but also personal data that falls under the GDPR. When the IP address is merely used to make a transmission, it is not processed as personal data and only ePD concerns apply. But when we process it to ban the IP, it is processed as personal data under a legitimate interest. This processing does not fall under any of the categories from ePD Art 6, so that only GDPR concerns apply. These include a requirement to inform the data subject about the processing at the time in accordance with GDPR Art 13, which could be satisfied by displaying a link to a privacy policy in the course of the login process. For a legitimate interest argument, it also depends on the expectations of the typical data subject. Since some security measures such as security logs are normal and should be expected, a legitimate interest argument is likely to be strong. I think this is the correct conclusion, even though the “it's not traffic data, or at least doesn't fall under the ePD” argument is quite weak. It hinges on the assumption that security measures are not “value added services”. This fits the intent of the ePD, but not the actual definition of value added services. In any case, you do not need to ask for consent unless you're required to obtain consent e.g. under ePD Art 6(3) or because your processing of personal data relies on consent as the legal basis per GDPR Art 6. It also has to be noted that ePD has no immediate effect, but has to be implemented by each EU member state in national law. These laws can provide more specific guidance. | The obligation to notify the supervisory authority (CNIL in your case) no longer exists. It was part of the previous regulatory framework, but it is not part of GDPR (which takes affect tomorrow). If you use CCTV that may monitor employees (i.e. they sometimes enter the HQ to consult with the owner), your obligations under the GDPR is basically to inform the employees that the CCTV cameras are there. I.e. Data subjects are entitled to understand when their personal data is being processed, covering the transparency aspect of processing. The use of CCTV must be communicated via signage which indicates the areas covered and instructions for further information. | I believe in this case, your company (OrgX) is a data processor and your customer's organization (OrgY) is the data controller. OrgY is responsible for establishing a lawful basis for sending you (OrgX) the personal data for their employees. Note that consent is just one of six lawful bases outlined in article 6(1). I'm no expert, but I believe OrgY's admin can claim they have a legitimate interest in sending their employee's personal data for training sake. In either case, the data processor is not responsible for establishing the lawful basis for processing. Of course, data processors aren't completely off the hook. GDPR outlines specific requirements for data processors (see chapter 4, particularly article 28). | What copyright or trademark law permits and what Google's terms of service permit may well not be the same thing. It is not "illegal" to violate the ToS unless they form a binding contract, which often they will not. Even when they do, unless some cognizable harm is done, a violation of the TOS is probably not enforceable by suit or in any other way. Embedding via an Iframe simply points the browser to another site, and probably is not legally different from including a clickable link. Using CSS to alter the display might be considered to be creating a derivative work, and thus to be a copyright infringement if done without permission. Somce the linked document says: "Don’t remove, obscure, or alter any of our branding, logos, or legal notices." making any such change woule violate the terms of the ToS, although this might not be an enforceable restriction. It is also IMO doubtful whether a "share" button constitutes part, of the "branding, logos, or legal notices." | At the bottom of every edit screen on Wikipedia, above the "save page" button, it says: By clicking the "Save page" button, you agree to the Terms of Use and you irrevocably agree to release your contribution under the CC BY-SA 3.0 License and the GFDL with the understanding that a hyperlink or URL is sufficient for CC BY-SA 3.0 attribution. If you are asking for technical details on how to show that on a MediaWiki installation, that question could probably be better asked at another site. Regardless, on a standard MediaWiki installation, that text may be found and modified at the [[MediaWiki:Copyrightwarning2]] (sometimes [[MediaWiki:Copyrightwarning]]) page of the wiki. | You are processing the users IP address in order to carry out the translation to a physical location (see my comment for the technical issues with that) and an IP address is most certainly considered personal information, so yes under the GDPR you are going to need a published policy because you are both data controller and data processor. You need to inform the user of what you are doing, and you need to tell them of the legal basis for the processing (there are several under the GDPR, of which consent is only one - but in your case its going to be the easiest to justify). If you use a third party service for the location translation, you also need to inform the user of that and make available the third party services data processing policy. |
Rental: am I responsible for all maintenance, including that caused by wear and tear, under $200? tl/dr: My property manager (PM) states that I'm responsible for all maintenance under $200 in the home, regardless of whether it is the result of damage I cause. This is on the basis of a clause in the lease that I find very ambiguous. This also is at odds with my (admittedly non-expert) understanding of real estate law. Is it possible I'm actually on the hook for repairs clearly caused by standard wear-and-tear, and which are not at all my fault? I just moved into a new rental home and there have been a number of maintenance items that have needed repair, which the owner has paid for. However the property manager has recently stated that we are responsible for all maintenance items under $200. That sounds very much at odds with my understanding of "real estate law" (aka the landlord is always responsible for basic wear and tear), and didn't sound like anything I read in the lease so I looked it over. There are two clauses in the lease related to maintenance: TENANT TO MAINTAIN; USE OF PREMISES; TENANT shall be responsible for the cost of all minor repairs and damages to the PREMISES due to the default, negligence, or willful misconduct of TENANT or TENANT'S family or guests, including [long list of perfectly reasonable things]. TENANT to alert the LANDLORD to any declining conditions inside and outside of the PREMISES included but not limited to [another list of things]. This seems perfectly normal and reasonable to me. Farther down it says: Maintenance: The Tenant agrees to properly maintain the home and complete, at his own expense, all daily maintenance EXCLUDING furnace/AC, water heater, appliance replacement and major repairs. The tenant is responsible for the cleaning of all clogged drain lines. If the home is located within a community governed by a Homeowners Association, Tenant does hereby agree to abide by the rules and bylaws of said Association (Exceeding $200 maintenance threshold contact owner/landlord) (emphasis mine). That last bit - Exceeding $200 maintenance threshold contact owner/landlord - is what the PM pointed to as establishing that I am responsible for all maintenance under $200. That is not at all how I understood that sentence. The reason is because this is a section talking about daily maintenance, i.e. the regular things that need to happen to keep a house running - changing air filters, light bulbs, snow removal, etc... and that the $200 threshold only applies to items such as these. However the PM believes this means that I'm instead responsible for any maintenance under $200. To pick a specific example, the basement just lost all power. An electrician just left and determined that there is a wiring issue in the walls and a new wire needs to be run. From the perspective of the PM, if the electrician charges less than $200 it is my responsibility because of this clause in the lease. I can't decide if I simply misread this lease because of my own expectations on the division of duties between tenant and landlord (aka the landlord is always responsible for all normal wear and tear - such as a wire breaking somewhere in the walls), or if the PMs understanding of this clause is completely at odds with basic property management law and therefore incorrect. Obviously though I need to figure out which is the case so I know how to respond. If I signed a lease I shouldn't have because I misread an important clause, then I'm going to have to eat this one and let it be the cost of learning an important lesson... So... Is my PMs understanding of the situation correct? | Bizarrely, it depends on where you live in Kentucky. There is a law, the Uniform Residential Landlord and Tenant Act (KRS 383.500 to 383.705) which states limits on residential leases (otherwise, the matter would be governed by the terms of the contract and common law). The state didn't enact those laws as enforceable in the state, it "made them available" for cities, counties and urban-county governments to adopt unmodified (or not). So it depends in part on whether your locale adopted the law. Assuming it did, in the definitions, (13)"Security deposit" means an escrow payment made to the landlord under the rental agreement for the purpose of securing the landlord against financial loss due to damage to the premises occasioned by the tenant's occupancy other than ordinary wear and tear. (emphasis added) That would mean that they can't take the cost of carpet cleaning, painting etc. out of your security deposit. §383.595 (again, if applicable) states the obligations of the landlord, so he must Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by him So it depends on whether the URLTA was enacted in your jurisdiction. This page indicates where that is the law, and also urges you to read the lease. | In RI it appears that two days notice and a reasonable purpose is enough. There are states that list the reasons a landlord can access a unit; RI is not one of those states. http://webserver.rilin.state.ri.us/Statutes/title34/34-18/34-18-26.HTM | I am assuming in this answer that the lease or rental agreement provides the landlord with a right of access for required maintenance. The question is not clear on that point. If there is a specific and reasonable ground for refusing a particular representative or agent of the landlord, you might be able to do so. If, for example, that particular worker had previously insulted you in your apartment, or had attempted to steal from you there, you could probably refuse entrance and request the landlord to send a different worker to do the job. But in general the landlord may choose his or her agents, and if it is a reasonable for an agent to be admitted, you must admit whatever agent the landlord sends. You can probably demand reasonable notice, depending on the terms of the lease. You may be able to demand to be present when the agent is to be in the premises, again depending on the lease. But I fo not think that the tenant can arbitrarily choose which agent the landlord will use. | Is it possible to break my lease without a penalty due to this? No. A reminder to the landlord or reporting with the authorities the violation is most likely to dissuade the landlord from incurring nuisances earlier than 7AM. The landlord might be mindful enough to ensure that work done between 6AM to 7AM does not disturb tenants. Even if the landlord insisted on causing disturbances earlier than 7AM, the situation is very unlikely to justify tenants' breach of the lease. That is because the annoyance from 6AM to 7AM does not render (or is not what renders) a unit unlivable. The landlord's violation could be actionable if it causes to the tenant(s) an provable loss. | There is, in general, a rule that all matters connected with a single transaction or event should be included in a single legal case. Different jurisdictions apply this diffidently, and I haven't yet researched this in Maryland specifically. Also, if you agree to pay a part of what the landlord claims, you will quite likely be asked to sign a settlement agreement as part of the transaction. This is likely to include a release of all claims connected with your tenancy at the apartment. If it does, and you sign the agreement, you will be giving up any claim you might otherwise have because of the failure to properly notify you. You may want to consult a lawyer about this. A one-time consultation might not be very expensive. If you sued the landlord, you could do so in small claims court, where legal costs are significantly lower than in other courts. | Fair wear and tear Means the normal deterioration of a property from ordinary, everyday use. Exposure to the elements, time, as well as day to day living can cause fair wear and tear. Breakages as a result of normal use are also wear and tear. Damage is either intentional or a result of usage that is not normal. So, if the closet has failed through normal use - throwing a wheel on a runner, a hinge or latch breaking in normal use - then it's your responsibility. If it is a result of abnormal use - slamming, continuing to operate when something is clearly wrong - then it's your tenant's responsibility. However, there are commercial consideration beyond the legal ones. A tenant with a 3-year record of on-time rental payments and no other demands beyond a broken closet? Fix it and keep the tenant happy. | he is jointly liable for the remaining 3 months, even though he never signed anything. Is this true? That seems unlikely. The lease is between Adam and the landlord. Although the lease might have language making all tenants jointly and severally liable, it would affect Bob only if it can be proved that he was aware of those terms when he moved in. Your description does not elaborate on any agreement(s) between Adam and Bob. But Adam is not allowed to impose on Bob any obligations merely because relations between them broke down. Absent a contract between Adam and Bob, the question of whether Adam is entitled to any recovery from Bob could only be assessed on equitable grounds. | 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"). |
"Not for individual resale" - really? In at least the US and UK lots of items that are sold in multipacks come with a notice on them that often reads: Not for individual resale That always strikes me as slightly odd - it looks like it's intended to be a contractual term that I can only see after opening the outer packaging and in a situation where I wouldn't expect any terms to apply other than between myself and the retailer/wholesaler. If I were to choose to ignore that and split multipacks to sell them later would the manufacturer of the product in question have any recourse against me? (In either of the aforementioned jurisdictions) | My understanding is that this isn't a contractual term, but rather a warning that the items don't satisfy legal requirements for individual sale. The seller and manufacturer likely don't care whether you resell the items, but the government does. In the US, at least, regulations of the Food and Drug Administration require that (with certain exceptions) food items sold at retail must be marked with a Nutrition Facts label, showing calorie counts, fat and sugar content, and so on. The FDA has information on this requirement, including citations to the relevant sections of the Code of Federal Regulations (CFR). For example, if you buy a big multipack of tiny ("fun size") candy bars, the manufacturer usually won't have printed Nutrition Facts on each candy bar's wrapper (because it's too small). There will instead be a label on the outer bag. As such, you can't legally resell the candy bars individually, because they don't meet labeling requirements. In fact, in the FDA page I linked above, you can see that manufacturers are required to print "This unit not labeled for retail sale" on individual items if they don't have Nutrition Facts labels. See the 12th item in the table of exemptions. | 20th Century Fox have a trademark on "Simpsons." They have trademarks on "Bart Simpson", on "D'oh", on "Duff Beer". I would assume that they take their trademarks seriously. What you can't do is to use someone else's trademark to make people believe your commercial product is related to theirs. It's quite reasonable to assume that someone seeing your book in a store would think it is written by the makers of The Simpsons show and therefore buy it. Even if you say that isn't your intention, it is what would happen. I'd try coming up with some different titles, maybe "How to write animated TV shows" with "Example: The Simpsons" (well, you are the writer so you should come up with something better), and take them to a lawyer. And then contact the makers of the show (again asking the lawyer for advice how to do this) because even if your lawyer says the title is fine, that doesn't mean you can't be sued. | 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. | You will have to pay import toll and taxes. There is no way around that unless you get only tiny deliveries, and that would be tax evasion. Atop that, make sure your wares are declared properly and are not regarded as counterfeit or not importable. Fashion products might require to follow some special rules on ingredients that are allowable. You can get the information you need at your customs office or at the customs office website | I make a copy of any important receipt printed on thermal paper, since the terms of many sellers and manufacturers require receipts for disputes. But I'm not aware of any law that says they have to make it convenient to maintain a receipt or other proof of purchase. However, when a company makes their terms unclear, unexpected, or difficult to comply with it seems there is often a lawyer ready to step up and file a class action lawsuit. Here's one archive to give you an idea of what companies will settle. In the United States the FTC is also empowered by law to "protect consumers," which means that if "disappearing" receipts become a widespread problem for consumers they could take action on the government's authority: The Federal Trade Commission Act is the primary statute of the Commission. Under this Act, the Commission is empowered, among other things, to (a) prevent unfair methods of competition, and unfair or deceptive acts or practices in or affecting commerce; (b) seek monetary redress and other relief for conduct injurious to consumers; (c) prescribe trade regulation rules defining with specificity acts or practices that are unfair or deceptive, and establishing requirements designed to prevent such acts or practices; (d) conduct investigations relating to the organization, business, practices, and management of entities engaged in commerce; and (e) make reports and legislative recommendations to Congress. Given the above, I wouldn't be surprised to see either a class-action lawsuit or FTC rule that requires retailers to provide "durable" receipts, or some convenient substitute. | 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. | Similar to this question and this one, the Uniform Commercial Code requires that exclusion of warranty be conspicuous. While it does not specify the manner in which text should be made conspicuous, putting it in all caps certainly has that effect if the surrounding text is in sentence case. The meaning is that all products come with implied warranties of merchantability (it is good enough to be sold to you) and fitness for purpose (it will do what it's meant to, and what you've been told it will do). This text excludes this product from those warranties (that is, those warranties do not apply). It also disclaims liability for claims and damages, which means that if this software causes you harm or damage, you can't file a suit to recover any loss. Whether this is enforceable would be decided by a court. | You would not be liable for a fine (If you think about it, how can you be - Australia does not have jurisdiction over you as you are in New Zealand, and you have broken no NZ law - Further, you declared the item to customs so even in Australia you could not be held liable) Looking at it another way, if you had gotten on a plane with it, declared it to customs on the arrival card, they would have simply asked to see it and made a decision whether to let it in or not - they would not fine you. Customs may or may not confiscate it (ie they may let it through). I've not sent a parcel to Australia, but I have imported seeds into NZ - I made a number of calls and emails to ensure I got the process right - expected to pay quite a lot of money to do it - in the end they just came straight to me - MAF did not even examine the parcel. Being that NZ and AU are pretty similar in terms of legislation (ie both the food standards are the same) - its probably actually Ok to send it anyway - in fact the Imported Food Control At 1992 - which I believe is applicable - specifically exempts many foods imported from New Zealand from the act. The last paragraph of this AU government web page states "The only New Zealand foods that are subject to the IFIS at the border are those classified as risk foods. Equivalence determination of food safety systems covering dairy products was reached in 2007 and seafood, uncooked pigmeat, chicken meat, coconut, pepper, paprika, peanuts and pistachios were aligned in 2011. This enabled these products to be brought under the TTMRA and removed the requirement for border inspection for these products." |
Can I quote an article which license is CC-BY-ND I have a question about direct quotations (i.e. "copy-and-paste" portions of a work - with ellipses "[...]" if necessary -) and paraphrasing the content of a text article which license is CC-BY-ND. As far as I can understand, I cannot produce something which qualifies as a "Derivative Work" from the original article (it's a text article, published on a website), but does that mean I'm unable to: to share a work which quotes those articles (there is more than one, all with the same license), directly with quotation marks or by paraphrasing the content? to share a work which summarizes the ideas written in one or more of those articles? to share a work which summarizes the ideas written in one or more of those articles and adds some personal opinions/instructions on how to follow those articles advice? I understand that the definition of adapted material of that license is: Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor but how are the former points related with this definition? Thanks in advance. | The licence does not allow you to do this However, copyright law may. You work is (probably) an adaptation within the terms of the licence and these are not allowed. So, put the licence aside and consider if your use is fair use or fair dealing; if it is, you are allowed to do it notwithstanding the licence. | The CC license scheme has a limited set of combinable menu items, where certain conditions are encoded with specific language in the license. In CC-BY-NC this involves a definition: NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange. Let's say that this is an accounting program, and businesses would use it to gain a commercial advantage (e.g. not having to spend capital on a fancy paid program, reduce expenses owing to the need to hire additional bookkeeping staff). Such a use could be considered "Commercial" (would not be NonCommercial). If I were to use the program for household bookkeeping, since I am not engaged in commerce, I do not gain compensation or commercial advantage. And even if I happen to run a craft side business with a couple of sales every year, my use is primarily intended to be for personal convenience. At the end, they modify NonCommercial more narrowly, saying that you can "sell" the software using not money, but other copyrighted material – so a program-for-program exchange is allowed. Then there is the License Grant: Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to: reproduce and Share the Licensed Material, in whole or in part, for NonCommercial purposes only; and produce, reproduce, and Share Adapted Material for NonCommercial purposes only. There does not exist a CC license specifically tailored to allowing "use in business" but excluding "sale of copies". In order to do that, you would have to write your own license (or hire an attorney to do that), and then you would have to distribute the work with that license. Another approach is to model the license based on the StackExchange TOS. There is a superficial problem (in this q&a, which I expect will eventually disappear, and also raised here), that the SE TOS seems contradictory, by saying that material is licenses under CC-SA terms, but then the terms are made more restrictive (which contradicts the CC-SA license). The SE license containse in §13 a merger clause: This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between You, the Network and Stack Exchange with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. When there is an apparent conflict, the SE terms win (as far as I can see). Therefore you might include an overriding provision in your license, which says something like "sale of the content is forbidden, but use in business is allowed" (don't use that literally). Your attorney (get one) could professionally advise you as to the most efficient way to get what you want. A remote third option is to explain to the CC people what you want, and maybe they would be willing to create a new license parameter. | According to the current version of the TOS: You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. This explicitly says you own your content, although Medium has some rights to do some things. And they won't sell it without permission, so unless Medium itself is publishing this book, it would seem to be copyright infringement. (Of course, I don't know what the TOS said when you originally wrote the article.) If what was copied was not copyrightable (like a quote from the Constitution, or a simple uncreative graph of something obvious) then it wouldn't be infringement. But your article was probably more than that. | 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". | Not very novel What you are talking about is a derivative work. This is arguably the most famous example: It's an interesting example because Leonardo da Vinci did not have copyright in the original but Marcel Duchamp and Francis Picabia do have copyright in the derivative. Even though the changes are physically small, they are enough. A crucial factor in current legal analysis of derivative works is transformativeness, largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc. The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the parody of "Oh, Pretty Woman" involved in the Campbell case. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is. For an author to have copyright in the derivative they must: Meet the (low) threshold of originality for copyright to exist. Make their derivative lawfully - either because they have permission or because their use falls under an exception to copyright like fair use or fair dealing. However, they do not have copyright in the original elements. For example, I could take the Mona Lisa and give her different clothes, a different background or a hat I will not be infringing their copyright. If I give her a different style of moustache? However, there is an issue with "I have copyright on the contents of the post" when you don't. Even if your work is derivative, you do not have copyright in the original parts and do not have the right to licence them. So, for example, this post is a derivative work of the Wikipedia page linked to above and I have copyright in my original contributions because: They meet the threshold of originality I have permission to make the derivative either through the Wikipedia licence or because my use is fair use. I can give Stack Exchange a licence for my work but I cannot give them a licence for the original work including, for example, the image and quote above. So, someone could quote my entire answer subject to the licence or fair work, but they couldn't copy just the image or quote. | It is legsl to include references showing readers where facts you include in your article were derived, or where they can be supported. Indeed academic ethics generally require doing so, although there is (in most cases) no legal requirement to do so. Listing the title, author, and publication information of a source is not an infringement of copyright. That J. Jones published an article on "How to Find the Purple Moth" [imaginary example] in volume 28 of the Journal of Moth Science is a fact.Facts are never protected by copyright. Indeed in US law 17 USC 102(b) provides that: b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. The laws of other countries are similar on this point. Indeed I do not know of any country in which facts are protected by copyright. So, including such references is fully legal, and no permission from the sources being cited is required. This is true whatever form the reference takes. In particular, if an online address for the content is included, this is still true. I do not know whether Medium, or any other specific publishing platform, will pat fees to authors based on clik-thru from such citations. That depends on their particular policies, which might be found in their Terms of Service or other policy document. | What the CC-BY-SA license does here is to contractify moral rights. Many countries have a right to be recognized as the author for your artistic works. This “moral right” is somewhat independent from the economic aspects of copyright, and is often not transferable. For example, this answer is licensed under CC-BY-SA 4.0 but I am subject to German law. I cannot assign or transfer my moral rights, though I could decide to not exercise them (e.g. by answering anonymously, or by using the CC-0 instrument). Now in the US, the situation would be very different. The US technically recognize that moral rights exist, but don't really protect them. Copyright can be transferred freely. If the new copyright holder issues a CC-BY-SA license, they and not the original creator might have to be attributed. Your question is a slightly different scenario: first, the original creator issues a CC-BY-SA license which requires reasonable attribution to the original creator. Then the copyright is transferred. Can the new copyright holder require existing attributions to be updated? I don't think so. The attributions were correct at the time when the license was issued. However, the licensor does have the right to request removal of attributions per section 3(a)(3). Is it possible to only transfer the right to attribution without other aspects of copyright? From my European perspective this is exactly the wrong way around: economic aspects would be more transferable than moral rights. But either way, transferring only a right to attribution without other aspects of copyright makes little sense. If the purpose of attribution is to credit the original creator, that cannot be meaningfully transferred because only the creator is the creator. If the purpose of attribution is to indicate the (current) copyright holder, that can be transferred but not independently of other aspects of copyright. Adding a notice that suggests that you hold the copyright if you do not could be fraudulent. | Ideas are not protected by copyright, only arrangements of words are protected. If you "rephrase" by only a minor change of wording, leaving much of the wording intact, that is still a copyright infringement unless an exception such as fair use or fair dealing applies (and that seems a bit doubtful in this case). If you "rephrase" so that the wording is quite different, even though the idea is the same, there is probably no infringement. Copying elements of computer code or other IT commands that are essential to making an example work is not infringement. Where there is only one or a very small number of ways to naturally express a fact, copying such expression is not infringement, as facts are not protected by copyright. Adding examples but keeping significant wording unchanged is still likely to be infringement. |
Verbal contract involving illegal act: was a law broken? A friend and I were discussing a hypothetical situation (taking place in the U.S.). It seems like one party has committed a misdeed, but we were not able to identify the specific crime or tort that took place. Here is the situation. Alice and Bob make a deal. Alice pays Bob now, and Bob agrees that by tomorrow, he will acquire or create a controlled substance and deliver it to Alice. But before tomorrow, Bob changes his mind and backs out of the deal. He keeps the money Alice gave him. What crime(s) or tort(s) has Bob committed in this situation? Our naive legal analysis: Bob did not commit fraud because he entered into the verbal contract with Alice in good faith. Bob is not guilty of breach of contract, because a contract requiring an illegal act is unenforceable. Bob never possessed or distributed a controlled substance. Possibly this is a conspiracy to deliver a controlled substance. But at a criminal trial, it might very hard to prove that Bob ever intended to provide a controlled substance, rather than just to cheat Alice out of money. | What Crimes Were Committed? The acts would constitute solicitation to manufacturer a controlled substance by Alice, attempted manufacture of a controlled substance by Bob, and conspiracy to commit a controlled substance by both of them. All of these are serious felony offenses. The payment of money by Alice and acceptance of money by Bob to carry out the production of a controlled substance would be a sufficient overt act to support the charges of solicitation, conspiracy and attempt, even though the crime was not carried out. All of these offenses are what are known in the criminal law as "inchoate offenses". Affirmative Defenses Would Bob or Alice have any affirmative defenses if prosecuted for these crimes? The two main offenses are impossibility and abandonment. We can assume, given Bob's good faith, that it was not impossible for him to manufacture the controlled substances, but he simply decided not to do it. A defendant may plead and prove, as an affirmative defense, of abandonment (typically under typical U.S. criminal statutes) by showing that he: Stopped all actions in furtherance of the crime or conspiracy Tried to stop the crime as it was ongoing Tried to convince the co-conspirators to halt such actions, or reported the crime to the police or other authorities. Bob did shop all actions in furtherance of the crime and tried (successfully) to stop the crime as it was ongoing. But, by not returning the funds and not making clear to Alice that he wanted nothing to do with the plan, Bob may not have met the third prong of an abandonment defense. Alice certainly does not have an abandonment defense. She took no overt acts abandoning the plan. Civil And Criminal Liability For Non-Drug Offenses Also, Bob might have criminal liability for theft, and civil liability to Alice on charges of civil theft or on a claim for restitution. First, a small technicality. Bob did breach a verbal contract. He has an affirmative defense of illegality to civil liability for breaching the verbal contract, but that doesn't change the fact that he did breach the contract. Anyway, while a contract to carry out an illegal act is unenforceable, and Bob would have no right to sue Alice in court if he performed the contract and then Alice failed to pay, it is less clear in this fact pattern where the illegality that bars the contract doesn't actually happen. Retaining property obtained on the basis of a contract that is disavowed that is not carried out, or when the funds are obtained on the basis of a criminal act, might constitute theft for which there might be criminal and civil penalties available, even though it was not fraud. Restitution to put the parties back where they would have been had a contract not be entered into might be available as a remedy. Restitution is often available even when the underlying contract itself fails when people have taken affirmative acts based upon a contract that cannot be legally performed. This wouldn't be a strong case for restitution, and state case law would answer the question, but it wouldn't be a frivolous one either. Of course, since Alice would be admitting to committing a crime is she brought suit (waiving her 5th Amendment right to be silent by doing so) she might be well advised not to sue. And, Bob would still have a strong "unclean hands" defense in an restitution or civil theft lawsuit. The Low Chance Of Charges Being Brought Considered It is true that if no one told anyone that the likelihood of criminal charges being brought is small. But, one can easily imagine hypothetically, that a third party saw what went down in person, or via surveillance video and audio, or that one of the parties told someone what happened and was reported (ex-lovers and mistreated trusted professional aids are notorious for doing things like this), or that someone confessed (often people do things like this when joining a twelve step program or a converting to a new religion), or one of them might testify truthfully at trial despite having a 5th Amendment right not to do so. What If The Jury Doesn't Believe Bob? If the criminal jury thinks that Bob was lying in the first place about good faith, he would have criminal liability for theft and Alice would have liability for solicitation of and conspiracy to commit the manufacture of controlled substances. Alice would be on the hook for the same felonies. Bob would be guilty of a crime the severity of which would depend upon how much money he took from Alice. If Bob doesn't think he can show the facts necessary to establish an abandonment defense, he might be smart to lie and say he was just stealing from Alice if the dollar amount was reasonably small, since the consequences would probably be less severe if he was convicted. It would be very hard to prove that he was truly agreeing to the verbal contract in good faith when he never performed it, but did take the money and not try to return it. | In the United States who has the authority and what is the procedure to determine if conduct by an individual is "illegal"? You are conflating several different ideas here, which is probably the source of your persistent confusion. 1) Actions are legal or not Illegal: Not authorized by law; Illicit ; unlawful; contrary to law The law sets out certain things that you must do (you must stop at a red light) and things you must not do (you must not drive under the influence). Sometimes actions fall into a gray area of the law, or aren't addressed at all, but if something is spelled out, then it's very clear whether the abstract action is legal or not. Running a red light is illegal. Driving under the influence is illegal. There are definitions and specified penalties for both. 2) A person may or may not be guilty of an illegal action Guilty: Having committed a crime or tort Abstract actions can be legal or illegal, but people commit crimes. When someone commits a crime, they are guilty of that crime. This is true whether or not they are ever prosecuted, or even if law enforcement knows who the guilty one is. If someone runs a red light at 2 in the morning on an empty street, it's still illegal and thus they are guilty of running a red - but no one will ever catch them. If someone is shot in the middle of the street, then someone is guilty of shooting them. Again, the shooter may never be found, but whoever they are, they are still guilty. 3) An individual may or may not be guilty of the crime of which they are charged. Charge: the statement of the alleged offense that brings a person to court If law enforcement (whether your local traffic cop or the FBI) believes that you are guilty of a crime, they can charge you with committing it. They may be right. They may be wrong. But the suspicion of having committed it is enough to charge you. To continue the traffic example: If an officer sees you running the red light, they can write you a ticket (effectively charging you) for doing so. They may or may not actually be right (it could have been yellow or malfunctioning, for example), but law enforcement has the power to charge regardless. 4) A defendant may or may be found guilty and convicted. Conviction: In a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged. Finding a person guilty by verdict of a jury. This is where the presumption of innocence comes in - the default assumption is that the accused did not commit the crime that they are being charged with, and it's the prosecutor's job to prove otherwise. If the accused is found to not be guilty of the crime, then they (presumably) didn't do it - it doesn't necessarily mean the crime didn't happen, just that this specific person didn't commit it. Alternatively, the defendant can be found not guilty for other reasons - the judge or jury can determine that the crime didn't take place, took place but was justified, or the defendant wasn't in their right mind at the time. On the other hand, if they are found guilty, they're convicted and sentenced to whatever an appropriate punishment is. TL;DR Whether something is legal is determined by the legislature when they pass laws. Someone who commits an illegal act is guilty of doing so, even if they are never charged. Again, this is determined by the legislature when they pass laws. People are charged with violations of specific laws by law enforcement. Defendants can be found guilty by the court system. In other words, only the courts can determine whether a specific individual actually committed illegal behavior, but the behavior is still illegal regardless. | I think the officer is probably lying, not just mistaken, but they are not required to always be truthful. In addition to the law against possessing ID with intent to commit, or to aid or abet, any crime, it is also against the law to be knowingly in possession of a stolen credit card, or any other property. An example of a strict-liability possession crime, which the officer knows of, is that it is a crime to possess heroin, period. I am skeptical that the officer actually believes that there is a law making it a crime to be in possession of a credit card with permission, and suspect that he thinks it is stolen. | Unless the Youtube Video shows them committing a crime, then no, they couldn't be arrested and tried for a crime. Them saying it, not under oath, is just hearsay that has no evidentiary value unless there is already other evidence they have committed a crime. In that case, its an admission. But there must be other, either circumstantial, or actual physical evidence of a crime. Past intoxication is not a crime, either. Possession of drugs, if caught with them is. But saying you got high is not. People have walked into police stations and confessed to murders. But with no evidence, no body, no name of a missing person, they can't even be held after the holding period for investigatory purposes expires. If the video shows them committing assault, or breaking and entering (there actually are idiots who post this stuff), the video is actual evidence of a crime and it is often used against them. The statements can be used to begin an investigation, but people don't usually confess to anything worth pursuing even an investigation. The fact that someone says they used to do something criminal is not enough. For all you ( meaning anyone ) knows, the statute of limitations has expired because they "pirated games" 10 years ago. Your comment is right on. | Severability My understand [sic] of contract law in general, is that an illegal or unenforceable clause does not render the whole contract void, but rather that specific clause is essentially stricken out, as if it did not exist. This is not true. Or, at least, not necessarily true. The courts, when interpreting a contract, try to give effect to the parties intentions. Or, more precisely, what an impartial, reasonable person would conclude their intentions at the time were based on the evidence. A contract is a set of mutual promises - if one of those promises is unenforceable, was it the parties intention that: the remainder be enforced, or absent that promise, they would not have made a deal, or they would have made a different deal, say, at a different price? It’s hard to make general statements about severability because they turn on the particular facts of each case. However, the common law doctrine is that severance means severance - you can take words out, but you can’t add words in or change the meaning of words you left behind. If doing that leaves nonsense, then the clause can’t be severed, and the whole contract is void. Further, what’s left must still be a contract. If the severed portion leaves a remainder that does not meet the requirements of a contract (e.g. because the severance totally removed one party’s consideration), then the whole contract is void. Similarly, if the severed item is central to the purpose of the contract, then the whole contract is void. Finally, at least in Common Law countries, there is a difference between provisions that are unenforcable (e.g. unfair restraint of trade clauses) and those that are illegal (e.g. your murder before resignation clause). In most jurisdictions, if a provision is unenforcable at common law or through statute, severability is an option. However, if the provision is illegal, then responses differ. In England and Wales, a provision that requires criminality or the commission of a tort cannot be severed - the illegality 'infects' the entire contract and makes the whole thing void. However, in Australia, the degree of illegality matters - heinous illegality infects the entire contract, but incidental illegality may not. For example, see REW08 Projects Pty Ltd v PNC Lifestyle Investments PTY LTD [2017] NSWCA 269 [23 October 2017] - the NSW Court of Appeal ruled that a property sale that contained clauses designed (by both parties) to defraud the state of Stamp Duty was nevertheless enforceable against the vendor - this would likely have been decided the other way in England and Wales. Of course, many contracts make express provision for unenforcable terms in what are known as severability clauses. These can go further than mere severance and allow the court to add words or even redraft entire sections to preserve the contract. However, this is not a panacea because what you agreed to in your severability clause may not be what you thought you agreed to when the rubber hits the road. For example, when you are forced to sell your Picasso for the 1,000USD deposit only, and you can't get the 100,000,000,000 Iranian Rial balance due to US sanctions. Therefore, deliberately leaving unenforcable provisions in a contract is dangerous because you don't know what you are going to get. However, is it unlawful? Well, that depends. There is nothing wrong with making legally unenforceable agreements. You and I can agree to go to the movies this Thursday. That's an unenforcable social arrangement, not a contract. If you stand me up, I can't sue you even if I bought popcorn for you. Similarly, there is no prohibition on having unenforcable terms in an otherwise legally binding contract, particularly if everyone knows they are unenforcable. Indeed, many large contracts are accompanied by Memorandums of Understanding that are unenforcable statements about how various organisations intend to work together to give effect to the contract. However, if the term is included to be deceptive or misleading by one party against the other (intentionally or otherwise), there may be legal consequences. A person who was misled into entering a contract may be able to have that contract declared void. Also, many jurisdictions make misleading and deceptive conduct in trade or commerce an offence. | UK-based answer here: The crux of your question revolves around whether the buyer(B) had committed an illegal act by withholding information that would have prevented the seller(A) from selling the good at the price he did. The act that B would seemingly be guilty of would be fraudulent misrepresentation A misrepresentation is a false statement of fact or law which induces the representee to enter a contract. The important thing here is if there is a "false statement". In your scenario, there was no false statement made, let alone one which induced A into selling his stamp to B. So there is no fraudulent misrepresentation, or misrepresentation of any kind. Looking at the law of fraud: s3 Fraud Act 2006: A person commits fraud by failing to disclose information when => The defendant: failed to disclose information to another person when he was under a legal duty to disclose that information dishonestly intending, by that failure, to make a gain or cause a loss. With regards to the scenario you've given, no fraud would have been committed because the buyer was under no legal duty to disclose such information | Yes, a crime is committed as is a tort. The exact crime would vary from state to state. The most common description of this crime and tort would be "fraud" but the way that criminal conduct is allocated between particular offenses in states varies considerable. Theft (in jurisdictions where it is broadly defined) and shoplifting (in jurisdictions where it is a distinct offense) would be two other plausible offenses. | You say the permission was "public", therefore I am going to assume that it cannot be argued that there was no agreement. There are two possibilities: If Company B has given consideration for the promise then there is a binding contract and Company A may be able to end it but could not seek redress for when it was in place. If there is no contract then the principle of promissory estoppel should have essentially the same effect. An agreement, including an IP licence, does not have to be in writing nor does it have to have any particular form. |
How to handle CVs / resumes with GDPR rules? As a consultant my resume is personal information which is handed out to prospective clients frequently. How personal should it be? Should some data be anonymized? Should the resume be returned from prospective clients? Is there any way to enforce a client to treat it confidential? | 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. | In order to process data (which includes storing data), a data controller must establish one or more of the lawful bases contained at Article 6(1) of the UK GDPR. Briefly, those are: a) Consent of the data subject b) Necessary for performance of a contract with the data subject c) Necessary for compliance with a legal obligation d) Necessary to protect vital interests of data subject or another person e) Necessary for public interest or exercise of official authority vested in the controller f) Necessary for controller's legitimate interests Clearly a) and d) don't apply. As you've settled the debt, it seems unlikely to me that b) or f) apply. That leaves c) and e). A common example under c) would be a requirement by Companies House or HMRC to keep accounting records for a certain period of time. Some public bodies may also find it necessary, under e), to retain records which they need to be able to carry out their other functions. It seems highly unlikely to me that either of these would justify retention for your "lifetime" however. I would start by sending them a written demand to have your data erased under Article 17(1). Make sure you also specifically request that they provide you with all the information (and in particular the purposes of the processing) under Article 15(1), and that, in the event that they refuse to erase your data, they explain the reasons why pursuant to Article 12(4). Their response on these points will be helpful in establishing whether there is a lawful basis. Your next step after that is either to complain to the ICO or to apply to court for a compliance order under Section 167 of the Data Protection Act 2018. The former is free while the latter is not and carries risks of cost if you are unsuccessful. If you opt for one of these steps, make sure you cite the relevant provisions of the GDPR and explain why you think there is no lawful basis for the data retention (including by referencing any response you received from them). "I have read GDPR guides on how to request erasure, but I don't really feel this applies- I want to have my account deleted, not the track record of the loan and repayment" It doesn't matter whether we are talking about your account or your track record. What matters is whether the account constitutes personal data, which it almost certainly does, per the definition at Article 4(1): "‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;" | The "right to be forgotten" is not absolute. It is subject (Art. 17) to certain conditions, in particular the absence of "overriding legitimate grounds for the processing" (1(c)). 3(b) explicitly exempts data controllers from the erasure where needed "for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject". I can even imagine a former employee first claiming his right to be forgotten, and then - a week after getting the confirmation - claiming his right to receive a resumee (a right in existense in Germany), which a company would not be able to fulfill as it hasnt got any data to base the resumee on. If the "right to receive a resumee" indeed exists in Germany and employers need to comply with it, that would be perfectly legitimate ground to only partially fulfil the request to be forgotten — forget everything but the resume. Is it against the law to document these cases? If you document "On 27 February 2020 John Smith requested to be forgotten so we deleted or anonymised all his records", you will effectively NOT forget him. If you actually had to forget him, it will therefore be against the law to document your forgetting that way. | The answer is right there in the quote: any information relating to an identified or identifiable natural person So if the data can in any way be tied to a specific individual then it is personal data. Note that you have to consider the data collection as a whole - even if there are no names in your data, if there is enough info in it that you can work out who the individual is (or probably is) its personal data. Obvious things include names, dates of birth, physical addresses, electronic addresses, social media profiles etc. Less obvious things include job or profession, memberships of organisations, friends and associates, town/suburb etc. i.e. things that in combination can reduce the set of people it could be to a small number of individuals. Basically, if you collect and store information about individuals in any way you are caught by this regulation. Even an email address used for login is personal data in that it identifies an individual and tells a hacker that they use your software. Examples of what is not personal data includes information about judicial persons (companies and other organisations that are sufficiently large that individual information cannot be inferred) or properly anonomized data where the data set is sufficiently large that identifying any particular individual is highly improbable (several dozen people at least depending on how revealing the data is). | Possibly, but probably not. Personal data is any information relating to an identifiable person. The statement “Alice is sick” is information, and relates to Alice who is identifiable. Processing personal data is not inherently illegal, but does require a legal basis per Art 6 GDPR, such as a legitimate interest. Here, the information is data concerning health, processing of which is prohibited unless one of the explicit exceptions applies (such as explicit consent, or legal obligations). So it is legitimate to have concerns on whether disclosure of this information would be legal. If these rules were breached, that would be on the data controller. Here, the company would be the data controller, not Bob (unless Bob acted against training and instructions and processed the personal data for his own purposes). However, GDPR probably doesn't apply to this specific interaction. In Art 2(1), the GDPR says that This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. A conversation itself would not be subject to GDPR rules – there is no filing system or similar structured data involved. What GDPR would prevent is to keep records on Alice's health status, but doesn't necessarily prevent talking about it informally. For example, the EUR 35.3M fine against H&M in Germany was imposed not because managers talked with employees about personal matters, but because they then maintained detailed files about those personal matters. Data controllers are responsible though for ensuring security and compliance through appropriate technical and organizational measures (TOMs). TOMs can include things such as non-disclosure agreements and training for staff. If Bob acts against such training, there could be repercussions along the Bob–Company employment relationship. But that would mostly be an employment law thing, not so much a GDPR thing. | Among other things, GDPR regulates what you may do with the data within your systems. You can use it for the contracted purpose, or in accordance to law, or with informed and revokable consent, or for some other enumerated purposes. Even with consent, you have to take security measures to avoid the misuse of the data. Remember the software shrink-wrap licenses? "By opening the package, you agree to the terms inside." GDPR makes the equivalent in the cloud world impossible. You have to document exactly what you do with the data, and for any use that is not necessary to perform the service the customer can opt out. In the scenario you describe, it is possible that you are not the data controller under GDPR but the data processor, and that you have a duty to keep the data from separate controllers apart. And delete any batch at the end of contract. If you want to do this professionally, you need to consult a lawyer for your specific plans. | 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. | Not legal advice - you should consult an attorney who knows your local jurisdiction. That's a general statement, but especially true here because the GDPR does not include personal liability for directors (or others) in the event of a data breach, but domestic laws may indeed do just that. The UK is one example where certain circumstances can lead to criminal liability for directors of a firm in the event of a breach. That said, your company should care. The fines for knowingly allowing a breach or not reporting it properly in a timely manner have been made more significant than the prior Directive. There are things you could do to potentially mitigate consequences in the event of a breach and a fine being levied on the company, such as aligning with best practices and getting certifications. In sum, the actual punishments for noncompliance will vary by jurisdiction, but any business that handles data in the EU should undoubtedly be ensuring it is aware of what, if any, obligations it has and taking steps to comply before May's deadline. |
Is it illegal to advertise another entity's product? I'm a retailer of products. One product in particular needs more attention, but the manufacturing company doesn't advertise their products in the media which my customers reside (mainly YouTube). I would like to draw more attention to the product, and create an advertisement featuring the product, but spin it as "you can buy this at my website". Is it illegal to feature another entity's product in my advertisement, given that: They do not have a trademark They do not have any patents on the product They do have a brand name The entity is headquartered in the UK and I am in the US | No it’s not illegal It’s called retailing: https://youtu.be/ywSkKkuGQ2A https://youtu.be/k8OreiHU91Y https://youtu.be/XpR6y1sNArU You are allowed to advertise the products you sell. Even if you don’t make them. You can even use their trademarks to identify them - that’s what trademarks are for. | 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. | A name is not protected by copyright. It can be protected as a trademark, but it would almost certainly be allowed as nominative fair use, since the alternative of indirect descriptive reference ("the grocery store founded in 1930 by George W. Jenkins") is not only cumbersome, but it doesn't even answer the question, where only the name can be used. Trademark protection is not absolute ownership of a word, it is the right to a specific use of a word (e.g. to identify a specific brand of computer for commercial purposes). If you use a trademark symbol, you have to be careful to use the right one (it may be illegal to imply registration by using R when the trademark is not registered). As far as I can determine, there is no obligation for a third party to so mark trademark terms, though it is commonly done. | The use may constitute trademark infringement if it implies sponsorship or endorsement I'm going to assume US jurisdiction for this question, because you've not provided one, and you haven't provided enough car manufacturer names to suggest that this wouldn't apply to the US. I'll also only cover Federal law (the cases were tried in state courts), so be aware that there may be additional responsibilities under state law that I don't examine here. 15 U.S. Code § 1114: (1) Any person who shall, without the consent of the registrant— (a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or (b) reproduce, counterfeit, copy, or colorably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall be liable in a civil action by the registrant for the remedies hereinafter provided. Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the acts have been committed with knowledge that such imitation is intended to be used to cause confusion, or to cause mistake, or to deceive. 15 U.S. Code § 1125: (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. These actions - the use of the trademarked manufacturer logo within the app - is likely to constitute trademark infringement, if the trademark owner's permission is not sought prior to publication, and the use of the trademark is likely to cause confusion as to the source, sponsorship or approval of the goods. What this means, is that if the trademarks are used in such a way that a reasonable person is likely to think that: The product is an official product from the owner/brand associated with the trademark; The product is sponsored by the owner/brand associated with the trademark; or The product is approved or endorsed by the owner/brand associated with the trademark. Then an action in trademark infringement may be brought by the trademark owner. Consider the following two cases: Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir. 1961) In this case, judgement was made for the defendant, as the defendant's field was not considered close enough to the plaintiff's for there to be a likely chance of confusion. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979) In this case the trial judge decided that the trademarks Slickcraft and Sleekcraft were unlikely to cause confusion. This ruling was overturned on appeal and an injunction was ordered by the court. Possible defenses Nominative use of a mark When a mark is used solely to identify a product, this use is privileged. A descriptive mark used for its primary purpose Descriptive marks are a subtype of trademarks, which are descriptive in nature but have acquired a secondary meaning. Here, using a descriptive mark for its primary purpose has been found not to constitute infringement. General First Amendment protection Satire and parody are generally recognized as defenses if the primary purpose of the use is not directly commercial. If the products are not similar enough to be likely to cause confusion; and The use does not imply endorsement, sponsorship or approval of the product by the trademark owner then it should be fine. It seems that the situation in the question above would not give rise to confusion (unless the car manufacturer also develops an app, for instance), the second issue - endorsement - should be avoided. Many programs will have a legal section that includes ownership information and disclaims any association with the trademark owner(s). I have not been able to locate any cases where the effect of these sections have been tested. Further reading Overview of Trademark Law | Under U.S. law, this is only actionable is you make this statement knowing that it would not "support the continued creation of X" and that instead, you had already completely abandoned that product and you were, for example, planning to change lines of work and become a lumberjack instead. Even in that case, common law fraud is hard to show, because you would need to show how that statement which related to how the profits will be used, rather than what you are actually receiving, could cause you damages in that narrow transaction. But, many states have deceptive trade practices acts that protect consumers by allowing the attorney general, local prosecutor, or a private individual or class of plaintiffs to sue if representations such as these are made when they are known to be false. Typically, these lawsuits provide for minimum statutory damages, attorneys' fees award, and when cases are brought by a public official, injunctive relief (ordering the advertising with that pitch to cease) are authorized. For example, saying this when it is false would be actionable in California and Colorado. A fairly common fact pattern is that someone will sell stuff at an above market price saying that "profits will help me pay for my cancer treatments" when in fact the person doesn't have cancer. This could even constitute criminal wire and mail fraud, for example. Sometimes, competitors can also sue you under the Lanham Act (which primarily governs federal trademarks), for false advertising about something that could unfairly undermine their sales if what you are saying isn't true and is causing their sales to drop. On the other hand, if you sincerely believe that what you are saying is true when you say it, and your belief is not so unreasonable that no reasonable person could believe that under the circumstances, then what you are saying is legal. Usually this is true, and if it is, ultimately, you will be fine. Although nothing can prevent you from being sued on a non-meritorious basis. In between are cases where this is true (you will be supported, but perhaps only get 5% of the profits while the rest are garnished for a lawsuit), but your statements were still misleading at the time you made them and you knew it. Those cases get resolved on a case by case basis. Outside U.S. law, your mileage may vary. Legal regulation of commercial speech varies significantly from one country to another. These statements might not be O.K. for example in a Communist regime on the Chinese or Korean model. | You could sue them for commercially exploiting your image without permission, so the waiver is necessary. It is entirely legal to require of tenants (even if weird) that they be part of an advertising campaign, in a specified way: it's also your right to refuse to sign. There is a minuscule chance that there is a local ordinance prohibiting such a clause. | It may be discrimination, but it is not discrimination based upon any reason that the company is prohibited from engaging in. This conduct is legal in pretty much all U.S. jurisdictions. | Generally you can only use logos (i.e., symbolic trademarks) if you have the trademark owners' permission. You may certainly use the names Cisco and Microsoft nominatively, although they might ask you to provide a disclaimer of any affiliation including sponsorhip or approval, if it gets to them. "Not making any money" is also not the sole determinative factor in proving your defense of "fair use". |
Forced arbitration with opt-out only by physical mail, can they do this? I have an account with TruMark Credit Union. Today I received a letter telling me that unless I send them a physical letter opting-out that my right to a jury trial would be lost... can they do this? How can they create an opt-out only system, and how can they not accept my opt-out over the phone or email? | This follows from a term in your agreement: in opening the account, you agreed to a binding arbitration clause. The general reason why they can do this is because it is not prohibited by law to have such clauses in agreements (in fact, the Federal Arbitration Act protects such clauses from legal challenge). For the same reasons, the clauses can impose deadlines on opt-out or require opt-out by mail as opposed to email or phone call. The premise is that if you find such terms unacceptably onerous or unacceptable, you will not patronize that business. That assumes that the customer read and understood the agreement that they signed, which I grant is often untrue. | The customer list is indeed a trade secret if the shop kept its customer list secret and has an advantage from having that customer list, while others don’t have it. And I would think that is the case, because a competitor laying their hands on the list could for example send special offers to the customers in the list. The question is whether your two hairdressers took that customer list and whether the store has reasonable evidence that they did. If customers find out where their favourite hairdresser moved to that’s no legal problem. Can’t understand why no attorney wants to take the case. To the attorney it doesn’t make a difference whether they took the list or not. If they took the list then his or her job is to end the case with the smallest possible amount of damages being paid. PS. Just read in the comments that there is an accusation of "intentional interference with economic relationship". I would want a lawyer who knows the difference between perfectly legal competition which includes trying to get customers to move their business, and "intentional interference with economic relationship". PS. Really make sure that these guys appear in court. With a lawyer. Not appearing means that if the plaintiff says "Judge, these guys did X, punish them!" and they are not there to say "We absolutely didn't do X, prove it if you can", the judge will assume that they did X. | It depends upon how the service works. A "scrivner" is permitted, but "legal services" are not. If, for example, it asks you the questions on a state approved form and asks you to fill in answers and the compiles the answers into a complaint with the proper typesetting, this would be permissible. It could also have "educational materials" which you could read that could discuss small claims court. But, if it provides individualized assistance on a case by case basis on how to answer the questions, for example, prodding you to say something about each element of a cause of action if you fail to do so, this might very well constitute the practice of law and be illegal. | Your description of the facts is vague enough that we can't offer an informed judgment, but to remedy this, I will paraphrase your account of the facts (you can decide whether this is what you were trying to say). I was sitting outside of the Sprint store today waiting for my step daughter to come out. While waiting, two police officers walked up to my car and asked me to turn off my vehicle and come inside. When I voluntarily went inside, the store staff said that they called the police because they had had some sort of problems with people applying for service and absconding with the phone to resell on the black market, and they thought that was part of some such criminal plan. Because of that, they refused to give her a phone or service contract. But then they also told us to never come back, threatening arrest for trespassing. I have never been in that store before. Were my rights violated? No, neither by the police nor by the manager. The police, or the store manager, can legally request you to come in for a conversation: what matters most is whether you were forced to come in against your will. By your report, you were not, so your rights were not violated. The police are irrelevant to the remainder of the question. What remains is whether your rights were violated because the manager told you to go away and never come back under pain of prosecution. The store is private property, meaning that the owner has wide latitude to grant or deny permission to enter. If they hate pink hair and your hair is pink, they can legally "ban" you. If they suspect you of involvement in a criminal activity, that can most certainly legally ban you. That does not mean that it was a righteous or justified decision on their part, or a good business choice, but it is their legal right. So, no, your rights were not violated. | I would presume that this is legal (without researching the laws in Cali. or Texas). Their contract is an offer to enter into an agreement. You accept that offer by signing. Their pre-requisite for that offer is that you pay the nonrefundable application fee. In other words, they are refusing to make you an offer until you pay a set fee. Now the degree of negotiability, among other factors, would go into determining whether the contract is fully enforceable. I did a little bit of research. (Please note that this is not legal advice. If this applies to a current situation, seek the advice of an attorney licensed to practice in your jurisdiction.) There does not seem to be any indication that the landlord needs to provide a sample lease to you before s/he decides that you are an eligible applicant. The application fee is not a contract to rent the premises; it is an application to be considered a tenant. Pro-Business Perspective: Why would I (the landlord) waste my time going over an application with someone and show them a model unit if they are not even eligible to rent from me? I have better things to do. Pro-Consumer Perspective: Why waste my time and money if I refuse non-negotiable terms in a lease? The application fee is capped in California and must be used to cover screening costs or refunded if not used. The likelihood of success in a claim regarding this might be indicated by the California Dept. of Consumer Affairs: "If you don't like the landlord's policy on application screening fees, you may want to look for another rental unit. If you decide to pay the application screening fee, any agreement regarding a refund should be in writing." It is important to note that you can always try to negotiate with the landlord. Personally, every lease I have had I have negotiated to get more favorable terms. You, as a tenant, have every right to try to negotiate, and should use that right. | You could first look for a force majeure clause in the lease which says something about natural disasters and the like. If there is a clause which says e.g. "Landlord will not be held responsible for problems arising from ice storms", that doesn't help you, but maybe it specifies e.g. rent reduction of $2/day for lack of electricity. That doesn't mean he can ignore the law. However, in this situation, a particular reading of the law ("there must be an infallible supply of electricity") imposes an impossible requirement on the landlord, and the courts probably won't require a landlord to do the impossible. It is not clear that your situation violates either the letter or the spirit of the law. Take clause (d): your "heating facilities" presumably conformed to applicable law at the time of installation and have since been maintained, and they are adequate, but they don't work if the grid doesn't supply power (and that is not a matter under the landlord's control). In other words, he provided the "infrastructure", and the problem is on the power company's end. Likewise "electrical lighting with wiring and electrical equipment" -- an ordinary interpretation of that clause is "wires and fixtures", and doesn't include "flow of electrons", which is supplied by your local power company. | What legal options do I have here? I don't think I can sue for defamation of character since the email was sent to me only. Your rationale about defamation is accurate with respect to the establishment (henceforth "company"). But you may sue the person(s) who approached the company to falsely accuse you of that crime. Being banned certainly qualifies as special damage (that is, concrete damage), whence you have a viable claim of defamation per quod. If the crime that was falsely imputed to you is a felony or serious crime, then you additionally have a viable claim of defamation per se. I was thinking that I may have some legal recourse since the email clearly threatens to defame my character if I re-enter the establishment You have legal remedies, although not necessarily from this angle. The company can credibly argue that it sought to discourage you from contravening the "safety measure" it adopted in response to the accusations made about you. If it turns out that the company fabricated any false accusations it divulges, though, then you could sue the company for torts related to --and in addition to-- its defamatory falsehoods. So far the information you share here shows no signs of company's involvement in inventing the false accusations. What legal options do I have here? You need to ask the company for source and details of the information. In line with this comment, you should also ensure the company is aware of the mistaken identity. If the company declines to listen to you --and ideally see any proofs you have--, that could evidence some sort of tortious conduct on the company's part. Beware that in Florida a defamed person is required to demand a retraction of the false accusations prior to filing a defamation suit. Absent that request for retraction, it will be very easy for the sued defamer(s) to have your complaint dismissed. If the company refuses to disclose the source of the false information, then you need to seek injunctive relief in court. That means suing the company so as to (1) compel the company to identify the person(s) who accused you, and perhaps (2) strike the ban that the company put in place as a result of the false accusations. Even if you don't prevail in striking the ban, the court proceedings would give you the occasion to set the record straight and prevent the company from defaming you if you legitimately expose (to the public) the arbitrariness of its ban. To be clear, the company can always indulge in defaming you for the sake of justifying its ban, although that would be dumb in light of what you will have proved in court by then. In jurisdictions where a request for retraction is not mandatory, a plaintiff who does not know the identity of his defamer(s) may (1) file suit against "Doe defendants", (2) subpoena the non-party company so as to obtain records related to the false accusations (obviously ensuring that these reveal the authorship thereof), and (3) upon production of subpoena records and requesting the identified defamer for a retraction, amend the complaint to properly identify the defendant. This would be more efficient than filing two suits (one for injunctive relief against the company, and another against the defamers). However, I am uncertain of whether this would work in Florida, given its pre-suit requirement of request for retraction. | From what I can determine, there has not been a legal challenge to the practice that reached a high enough level to get on my radar, so it's not clearly prohibited or allowed. Turning to the relevant federal regulations, the implementation of the Fair Housing Act, the law hinges in part on an Aggrieved person includes any person who— (a) Claims to have been injured by a discriminatory housing practice; or (b) Believes that such person will be injured by a discriminatory housing practice that is about to occur. In order to sue a university because they offer sex-separated halls, floors or rooms, a plaintiff would have to show that they have been harmed by being given such a choice. Reading the prohibitions in §100.50, there is no obvious "Discriminat[ion] in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities", and it does not "otherwise makes unavailable or denies dwellings". Cases like McLaurin v. Oklahoma State Regents, 339 U.S. 637 (a case putting an end to the "separate but equal" doctrine) include reference to the fact that appellant was harmed ("The restrictions imposed upon appellant impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession"). Analogously, the relatively rare black-only residences of UC Davis and Cal State LA might be targeted in a discrimination suit, if plaintiffs can make the required legal argument that there is harm. |
Hypothetical: "War as Text" lawsuit in Cryptonomicon In Neil Stephenson's book "Cryptonomicon" there is an account of legal battles over a poster that was designed for an academic conference on "War as Text": [The artist] started with a black and white half-tone photo of a haggard World War Two [soldier]. He worked this image over with a photocopier, blowing the half-tone dots up into rough lumps like rubber balls chewed by a dog and wreaking any number of other distortions on it [...]. Then he added a few elements in colour; red lipstick, blue eye shadow, and a trace of a red brassiere strap peeking out from the soldier's unbuttoned uniform shirt. The book goes on to describe how the soldier is subsequently tracked down. The artist who made the poster then confessed that he had simply copied it from a book. [...]. High-powered trial lawyers converged on the small town in Kentucky [where the soldier now lives]. [...] The veteran announced that he was filing civil suit against the [conference organisers]. The organising committee pulled the poster from circulation, which caused thousands of bootleg copies to go up on the World Wide Web [...]. They also filed suit against the artist, whose net worth was about a thousand dollars and debts (mostly college loans) amounting to sixty-five thousand. I know this is all fiction, but do any of the parties in this have any actual grounds for a lawsuit? The book publisher and original photographer do not figure in the story, but the poster seems to have been both transformative and fair use. The soldier's case is not explained. Does he have some kind of libel or invasion of privacy case? | Does he have some kind of libel or invasion of privacy case? The description of the "art work" is somewhat inconclusive. I will assume that the red lipstick and blue eye shadow in the fictional poster are suggestive of that soldier's "makeup". If the World War Two soldier were still alive and a straight male, he might have a claim of defamation insofar as the poster portrayed him as having a sexual orientation which is inaccurate, detrimental to his reputation, and tending to dissuade others from associating with the soldier. Policies against sexual discrimination aside, no straight male likes being falsely characterized as to sexual orientation (in part because of the undeniably harmful, lasting impact something like this would have in his environment). The defendant's possible allegation that the "art work" was hyperbole would be unavailing. That is because the suggestive poster is likely to impinge on viewers a detrimental concept of the soldier even if it is obvious to those viewers that the poster was not an actual, color photograph taken of him during the World War II. In most jurisdictions in the US, the defamed soldier would need to file suit within a year from the publication of the poster (an exception is Tennessee: six months) because the statute of limitations for claims of defamation is shorter than most others. | Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else. Paragraph (f) also says that if a person files a false infringement claim, they become liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts. Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law. [Addendum] I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law. | There is a legal concept of de minimis: the idea that some offenses, civil or criminal, are too small to be worth prosecuting. For example, a photograph of a city scene that incidentally captured part of a copyrighted billboard in one corner of the image infringes the copyright on that billboard. But if the copyright holder were to sue, it's virtually certain the suit would be thrown out due to the minimal nature of the infringement. Technically speaking, yes, what you describe is a crime. But any prosecutor who tried to bring charges to that effect is likely to be chewed out by the judge for wasting everyone's time. (Incidentally, assuming the reporter and property owner are US citizens, the crime is failure to cross at a designated crossing point (19 USC 1459, a customs offense) rather than improper entry (8 USC 1325, an immigration offense).) | You're largely correct, though there's some vocabulary you're using that could go either way in terms of proper understanding. My comments on your understanding, presuming we're dealing with two Berne countries (UCC is largely irrelevant these days): My understanding of copyright is that it grants the author an exclusive right to distribute their work in whatever manner they'd like for some amount of time (determined by the copyright duration in a country). Generally correct though there can be many exceptions here (fair use, technical/temporary copying, first-sale doctrine, etc.). Can a person in Country A legally use the adapted work? I'm assuming no [...], Basically correct, whoever holds rights to the original work could theoretically still assert their rights in Country A on any portion of the derivative work that was part of the original. [...] does that mean that the author of the work created in Country B does not technically have all the rights to the work they created, since they have no control over whether their work can be distributed in Country A? This is splitting hairs, but while the derivative author has the rights given to them by copyright law, they aren't absolute. In particular in this case, regardless of which country, they still don't have any inherent exclusive rights over the original work. With respect to country B, those exclusive rights have expired so they don't bind the derivative author, but they haven't expired in country A. If that is the case, then would these rights be "granted" to the author of the adaptation when the copyright finally expires in Country A? Again splitting hairs, but its more helpful to express that no rights are actively granted by the expiration of copyright in Country A, it's just that no one holds those rights anymore (here there might be a language issue too, generally in copyright law "rights" refers to those exclusive actions that may be taken by the copyright holder, and not always to the "right" i.e. "freedom" for someone to do something). | The images and text are copyright (if they are). What Google does with them is fair use/dealing. It works like this: if Google's bot can find them then you (the owner) have put them on the World Wide Web presumably because you want people to see them, effectively you have put them on public display. Google is assisting you in that endeavour by enabling people who are looking for what you are displaying to find it. Their use of your material enhances its value to you which is a rock solid defence. If you don't want your stuff on public display then a) don't put it on a public part of the web - there are plenty of private cloud storage facilities or B) stick a file in your website that tells bots not to index it. | The courts are never in such a broad position to rule on generic wikileaks evidence. Theoretically, a court could have to rule on the admissibility of a specific document, so in that sense the matter is always dealt with on a case by case basis. There is a "document" that purports to be somehow from Amazon, reporting that a certain grey building with no architectural charm in a nearby village is an Amazon data center. Legally speaking, nobody cares, but let's say that there is some legal reason why it matters whether the claim is true (I stipulate that the document passes the relevance test). The publicly-posted document has no probative value, because anyone can create a file containing the word "Amazon". It looks like a cleaned-up OCR scan of a printout (hence the complete failure at non-English characters), and lacks any clear indicia of Amazon origin. Thus the party would have to establish that the document is authentic, and there must be a provable chain of custody from the author to the submitted document. Federal Rules of Evidence cover questions of authenticity and contents of admissible evidence in art IX, X. Nothing in rule 901 suggests that such a document would be admissible. Very theoretically, if they happened to also have the original paper document, there might be sufficient forensic evidence to prove that the document is traceably come from the purported source. The wikileaks document per se would still be inadmissible, but the (more) original document could be admissible. | In a hypothetical case like you are describing, you could make a contract with them regarding the duplication of the content, irrespective of copyright law. Their violation of that contract would not necessarily be a copyright violation (which would allow statutory damages), but you might win a breach of contract lawsuit. But if someone took it from them and made copies, you would likely not have a case against that person because copyright would not protect you and you have no contract with them. In addition, you could obtain a very "thin copyright" in a particular new presentation of the material. This would mean that copyright law would apply, but only to the particular presentation (e.g. new footnotes, a particular layout, etc...) If considering doing this IRL, you should consult a copyright attorney. | I can't comment on what the legal situation would be in your home country, but as a matter of U.S. law, the hypothetical scenario you've described is not illegal. First, because you aren't a U.S. citizen and because you aren't operating in the United States, the U.S. government probably has no jurisdiction over you, your website, or your conduct. Even if it did, the most relevant statute, 18 U.S. Code § 1017, would not apply. The statute prohibits the "fraudulent or wrongful" use of the FBI's seal. But "fraudulent" and "wrongful" generally refer only to conduct where one uses deception or other means to obtain money, property, etc. to which they have no lawful entitlement. United States v. Enmons, 410 U.S. 396, 399 (1973). Because you aren't using the seal to obtain anyone's property through deception, this use would not fall within the statute's proscriptions. Even if the government sought to prosecute you, you would have a valid First Amendment defense. The First Amendment protects the right to free speech, and it does not allow statements to be criminalized merely because they are false. United States v. Alvarez, 132 S. Ct. 2537 (2012). This outcome should be unsurprising to most U.S. observers. I think most people would agree that the U.S. obviously cannot prosecute a Hollywood producer for making a movie dramatizing the FBI's efforts to shut down the Pirate Bay, even if it displayed the FBI's seizure message on a monitor in the course of the movie, and even if it showed the seal being used on a completely fictional website. The hypothetical you're describing is not materially different. In both cases, the seal is being used to falsely create the impression -- for entertainment purposes -- that the FBI has shut down a website. Saying false things for entertainment purposes is not a crime in the United States. |
Does being in DHS custody awaiting criminal prosecution count as “time served”? A few months ago, Attorney General Jeff Sessions implemented a "zero tolerance policy", requiring the Department of Justice to criminally prosecute every single person caught crossing the border illegally. This has resulted in large numbers of children being separated from their parents. So President Trump passed an executive order intended to end the family separation issue. Here is what it says: The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members. So it orders people awaiting criminimal prosecution for illegal entry to be held by the Department of Homeland Security (DHS). This is in contrast to the standard practice before this, which was to keep people awaiting criminal prosecution for illegal entry in federal jail until their trial. I’m wondering about how this will affect sentencing. Before the executive order, judges would sentence most people convicted of illegal entry to “time served”, i.e. their sentence would be the jail time they already served before their trial, rather than an additional sentence after the trial. But my question is, how does this work if a person is kept in DHS custody rather than federal jail while awaiting criminal prosecution? Can time spent in that sort of DHS custody count as “time served” for sentencing purposes? The reason I ask is that if judges don’t have the “time served” option, then they may opt to sentence people to federal prison, where they’ll be away from their kids. | Yes. This is treated as time served as several media accounts of sentencing hearings in these cases have demonstrated. See, e.g., this account in The Atlantic magazine, and this one in the newspaper USA Today, and this one in the newspaper the Houston Chronicle. I also saw a similar account in the L.A. Times but can't provide a link because my non-subscription access limit has been exceeded. | Yes, this is allowed. A famous example was the Rodney King beating, where police officers were acquitted at the state level but convicted federally. US v. Lanza formalized the rule, and it has survived the application of the double jeopardy rule to the states. It's called the separate sovereigns doctrine, and also applies to prosecutions by two states (see Heath v. Alabama) and by an Indian tribe and the feds (see US v. Wheeler). It does not apply between DC and the feds or territories and the feds, because DC and territorial laws are established under the power of the federal government. These prosecutions are uncommon. As far as the feds go, they normally consider a state prosecution to have satisfied the federal interest in the case (win or lose). But prosecution by multiple sovereigns is not barred by the Fifth Amendment. | It's not odd to extradite people who are accused of crimes. The US has extradition treaties with many countries: see List of United States extradition treaties - Wikipedia. Extraditions are also recognized by international law: Extradition - Wikipedia As for El Chapo, the reason for his extradition is The decision to extradite Mr. Guzmán was an about-face for the Mexican government, which once claimed that he would serve his long sentence in Mexico first. However, after his Houdini-like escape in 2015, when his associates tunneled him out of Mexico’s most secure prison, officials began to reconsider.... When he was recaptured early last year, after one of Mexico’s most exhaustive manhunts, the government publicly said it would allow the extradition of Mr. Guzmán, thus relieving itself of the potential embarrassment of another escape and preventing further souring of its relationship with the United States. El Chapo, Mexican Drug Kingpin, Is Extradited to U.S. - The New York Times | Expunction may be possible for instance if you are acquitted, later proven innocent, pardoned, and various other things that fall short of being convicted and doing the time. The entire law is here (Texas code of criminal procedure 55.01). There is also the option of an order of non-disclosure, overviewed here. A requirement for such an order is that you were placed on and completed deferred adjudication community supervision, which from what I can tell is not what happened. "Background check removal" may range between simply taking your money and doing nothing, to doing what you could do yourself to get free of traces via radaris, intelius, spokeo, and so on to "request removal" from that web site. This will not make your record unavailable, because these websites don't have any special powers to reach into and manipulate state records. | In some states there is a law know as Caylee's Law, for example Connecticut General Statutes 53-21a(d) which requires reporting a child's disappearance: Any parent, guardian or person having custody or control, or providing supervision, of any child under the age of twelve years who knowingly fails to report the disappearance of such child to an appropriate law enforcement agency shall be guilty of a class A misdemeanor. For the purposes of this subsection, “disappearance of such child” means that the parent, guardian or person does not know the location of the child and has not had contact with the child for a twenty-four-hour period. Assume that they have done as the law requires, i.e. reporting the disappearance. It could be a crime for the parents to fake the kid's death, depending on what you did to "fake" the death. They might legally do things that could lead a person to think the child died; but telling the police, in the course of an investigation, that the child died in an accident, would be a crime. The parents would not have to convince the school district of anything, though someone at the school might alert the authorities that the child was gone (but they would know that anyway). They might well have to convince the police of something (i.e. that they didn't kill the child). It would certainly be a felony to lie to the IRS (i.e. claim the child as a dependent). It would also be a crime to continue to receive welfare payments or other benefits based on the fact of having a child. | The country where the accused person was arrested would extradite that person to one of the countries where the crimes had been committed. The extradition treaties or the law of the arresting country might have a rule to define how to choose which country took precedence. (Perhaps the earlier crime, or the more serious crime if they were different, or the closer ally might get priority.) Once the accused was extradited, s/he would be tried, and if convicted, sentenced. Once the sentence was completed, that person would be turned over to the second country for trial and possible sentence there. Sometimes, particularly if the sentence is long, an accused will be turned over to the second country for trial soon after conviction in the first country, under an agreement that the person would be returned to serve the sentence in the first country after the trial was over, whatever the outcome, and then sent back to the second country to serve any sentence imposed there. Or the second country could choose to count time served in the first country against its sentence, but I believe that this is not usual. Consider the case of Frank Abagnale who was sought by some 12 different countries when he was arrested in France. He was convicted and served time in France, then extradited to Sweden, where he was also tried, convicted and served time. Italy had requested his extradition, but he was deported to the US, where he was also tried, convicted, and served time. | Was the case Sealed? Or is it considered to be Private? Those are two different cases. I was not able to find any laws regarding sealing, or expunging records of Name Changes, but was able to find the Utah Law for Criminal Records. I can only assume they draw from one another. All that being said, assuming your whatever case is sealed, then Some records are sealed. In these kinds of cases, even information about the existence of the case is not publicly available. A person seeking access to a sealed record must petition the court for permission to unseal the records. Rule 4-202.03 states that, ....no one may access a sealed court record except by order of the court. A judge may review a sealed record when the circumstances warrant. From that I can assume that, The records are not public. The records will not show up in a routine check The records will be known only if a there is a court order. Comparing it with the Expungement Act, Continued Use of Sealed Records After sealing, BCI continues to index and maintain all expunged records of arrests and convictions, but the records will not be released to the public. BCI will not divulge any information contained in the expunged records to any person or agency without a court order, unless authorized by statute to do so. Upon request, the following organizations may receive information contained in expunged records: the Board of Pardons and Parole Peace Officer Standards and Training federal authorities, unless prohibited by federal law the Division of Occupational and Professional Licensing and the State Office of Education Both cases above require a court order to get that seal record information. However, from what I gather only expunged criminal records can be access upon request by the Division of Occupational Licences. Bottom line, it sounds like you are safe to mark is no previous name, but you may lose your license in the future if something goes south. I will recommend you to get a professional look into the word of the law and provide you with a written statement of the actual law. Another thing you can try is write to the court who sealed your case, present them the situation and explain what you have found so far, and ask for guidance. | How many indictments does it take for Donald Trump to be imprisoned? An unlimited amount. Imprisonment is usually authorized as a result of a conviction rather than from an indictment. Pretrial detention following an indictment but prior to a conviction is permitted, but discretionary in the judgment of the judge. Also, there is a right to post a judicially determined reasonable bond to obtain release from pretrial detention after one is indicted and before one is convicted in the vast majority of cases (including the ones that President Trump is facing). Can a person who is indicted, before running for president, become president? Yes. Indeed, the majority view of legal scholars (it is has never been tested in a real case) is that someone who is convicted and serving prison sentence can still become President if that is who the voters choose. What's the purpose of indicting Mr. Trump if indictments are only an accusation? An indictment is a pre-requisite to trying someone for a felony in federal court. To convict someone of a crime one needs to first indict them, then have a jury trial, and then have a jury unanimously vote to convict a person, before they can be convicted of a crime and sentenced for it. Even after conviction, there is a statutory (but not a constitutional) right to a direct appeal of that conviction to an appellate court. Also, an indictment is more than a mere accusation. An indictment in a determination of a grand jury that probable cause exists to believe that the person indicted committed the crime charged. In the federal court system grand juries are composed of 16 to 23 members and 12 members of the grand jury must concur in a decision to indict a defendant on a charge for there to be an indictment on that charge. This prevents people from enduring criminal prosecutions on charges that a majority of a grand jury finds are so baseless that there is not sufficient evidence to establish probable cause that the defendant committed that crime. The grand jury must base its decision to indict or not on actual evidence in support of the charges in the form of sworn witness testimony and exhibits, not just the allegations of the prosecutor. As a practical matter, the standards of professionalism in federal criminal prosecutions is so high that almost all charges sought by federal prosecutors from grand juries result in indictments on those charges (federal grand juries refuse to indict approximately one in 16,000 times). But, in state courts that use grand juries, which can't pick and choose only the best cases to prosecute, grand juries routinely refuse to indict defendants on a substantial share of charges brought to them by prosecutors (on the order of one in 20). One source notes: Statistical figures showing a higher prevalence of grand jury reluctance to follow the government in ages past are almost nonexistent. However, a table of felony arrests in New York County between 1900 and 1907 found on page 111 of the 1926 book The Prisoner at the Bar by Arthur Train provides some rare illumination. In those seven years, some 5,214 out of 57,241 people were arrested by the police on felony charges whom New York state grand jurors decided not to indict. Grand juries are especially likely to decline to indict defendants in cases involving celebrities, politicians, law enforcement officers, and other high profile cases with political implications. See also Kaeleigh Wiliams, "Grand Juries Should Not Hear Police Misconduct Cases: Grand Juries will Indict Anything, but a Police Officer" SLU Law Journal Online 79 (2021). |
Deletion of personal data I recently registered an account on an employment agency website. Had to provide my email address, a password and of course all of my personal data, including my complete professional background. During their "pre-qualification process", I had to register a separate account with one of their partners to take a test. During that phase, I decided this wasn't for me. This is when I realized that I couldn't access the account I created with them (sign in didn't work), nor could I access my account on their partner's website (same issue). So I wrote them an email, politely asking them to delete my account and all my personal data from their website and partner's website and to confirm to me when this would be done. They answered that: The reason why you were not able to log into your profile is that you haven't completed the pre-qualification process yet In regards to our partner, they are a separate company from us, so I am afraid that you will have to discuss this issue directly with them We will, as per your request, delete all the data related to you that has been stored on our platform. My questions Is it GDPR compliant that I can't access the account that I created and the personal data that I shared because "I haven't completed their internal pre-qualification process"? Is it GDPR compliant that their answer to my deletion request is "We will delete the data..." Do you see any other issue with how this went? And how should I handle the situation now? Thanks in advance for any help on that! Note: The company seems to be legally based in Norway and I am in Switzerland. | Is it GDPR compliant that I can't access the account that I created and the personal data that I shared because "I haven't completed their internal pre-qualification process"? Article 15 defines a “Right of access to the data subject” but it's difficult to see how this could be construed as a right to log into a specific website. Common sense suggests this would be a very bad idea. If they are willing to provide the data through another means (say a report or data dump of some sort), the obligation would seem to be met. In fact, article 15(3) even states that data controllers should merely provide the information in a “commonly used electronic form” (i.e. not necessarily through access to their systems or whatever form they are using internally for the processing). Have you asked for that and would you be satisfied by that resolution? Is it GDPR compliant that their answer to my deletion request is "We will delete the data..." The text of article 17 (right to erasure) explicitly specifies that such a request must be honored without “undue delay”. Article 12, which defines some of the modalities for the rights to access, rectification or erasure by the data subject, also provides that controllers shall “provide information on action taken on a request […] without undue delay and in any event within one month of receipt of the request”. You haven't provided any time frame and I don't think there is anything wrong with acknowledging the request by promising they “will” do it but in light of article 12, it seems you would indeed be entitled to know once they have actually taken further action. However, you implied you might want to access the data first and it's not clear to me whether you explicitly invoked the GDPR in earlier communications. So I would clarify and reiterate my request (access or erasure) and ask them for explicit confirmation once it has been satisfied. | It seems like some law must have been breached during the sharing of this information? Possibly, even probably. The scrutiny of your personal account in order to glean personal data (your IP address) and then using that personal data to match accounts may contravene Recital 50 of the GDPR: The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. If the website terms which you agreed to don't include this data matching, then that processing is not lawful. The rest of Recital 50 is relevant and worth quoting in full: If the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Union or Member State law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union or Member State law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations. It seems to me that an anonymous account could reasonably expect that the "further processing" of data matching is not in the public interest, an exercise of official authority, scientific or historical research or statistical. There is no link between the data matching exercise and the purpose for which IP addresses are normally collected: the operation and physical security of the website. Now, it may well be that the website terms do allow this data matching to discover links between accounts, or in any case prohibit having two accounts and allow reasonable methods to discover such links. It's also possible that a court has ordered the processing (as Iñaki Viggers has mentioned. We don't have that information; but ostensibly one wouldn't normally expect a personal account to be examined in this way, and certainly wouldn't expect any link discovered to be relayed to a third party. | The goal of the GDPR is to ensure a single market for personal data processing throughout the EU. Since all EU/EEA member states now have equivalent levels of data protection, it doesn't matter in which member state data is stored or processed. Member states cannot generally limit this single market via national laws. Furthermore, secure processing may be possible outside of the EU/EEA as discussed in Chapter 5 of the GDPR. Some countries such as Japan have been asserted an adequate level of data protection so that no special safety measures are necessary. For other countries, a transfer of personal data may be possible under so-called Standard Contractual Clauses which detail the responsibilities of the data exporter/importer. However, the recent Schrems II ruling has invalidated the (partial) adequacy decision for the United States, and has strongly hinted that SCCs only work if the parties are actually able to honor their responsibilities under the SCC (which is not the case with some surveillance laws). Data protection is likely not ensured for processing in the US or by US-controlled companies (even if the processing usually takes place within the EU). Given the sensitivity of health data, this means you should likely avoid using the typical public cloud providers (regardless of availability region). Depending on where your company is based, you might also be disqualified as a data processor by EU data controllers. So the GDPR has no data residency requirements that limit the processing/storage to Germany, but some data residency requirements to keep the data in the EU. However, there may be non-GDPR obligations that mandate how the data can be processed, but I'm not familiar with those (the German regulatory landscape for tele-health is very uneven, differs between German states, but is also improving a lot recently). Since you're processing health data, you should pay special attention to Art 9(3) GDPR which is expanded in German law by §22 BDSG to list a catalogue of possible safety measures you should consider, but none of them are related to data residency. §78 BDSG has further details on transfers into non-EU countries, such as emphasizing that human rights must be guaranteed in the target country. | There is no requirement about "data" in the GDPR, so provided this is just "data", no. An empty form with fields for personal data contains no personal data. On the other hand, if the form is filled in by the user with personal data (as defined in GDPR article 4), and you receive a copy of the filled in form and process these personal data (as defined in GDPR article 4) - then the answer is: Yes. However, if you do not process the personal data (i.e. the form is just printed out on paper and filled in with a pen, and nobody except the data subject has access to the piece of paper with the filled in form - then the answer again is "no"). | This will depend partly on what you use the e-commerce website for. If it is simply a point-of-sales and your accounting records are kept elsewhere, then it may be possible to delete their account including associated orders and payments, though you should check that the software doesn't simply update the record by setting the value for a column named deleted or del for short to 1 instead of 0 to identify deleted records, but instead actually deletes the record from the database. You should consider how you will refund a customer if required after doing so!! (i.e. perhaps you acknowledge the request but keep the information for at least as long as the customer is eligible for a refund, and then delete it). If the system is also used for accounting records, then if a customer/user wishes to assert their right to be forgotten, it is likely you'll need to disable the account and apply some kind of pseudonymisation (essentially replacing personal identifiers such as name, email address, date-of-birth, with dummy/null data), in order to preserve the integrity of your financial records. For example, in the UK, there is a statutory obligation on companies to retain financial records for at 7 years. In cases where data cannot be immediately erased due to other legitimate reasons for which it must be kept, once those retention periods expire the data must be erased. You'll need to keep a record of anyone that requests to be forgotten, and remember to follow-up to complete erasure at the appropriate dates if it can't be done immediately, and when the data is destroyed the user needs to be informed. | It depends. Can the data controller or another person, with "means reasonably likely to be used," (see clause 26 of the preamble of the GDPR) use that data alone or in combination with other data to identify a natural person? If yes, it is personal data within the meaning of the GDPR. If no, it is not personal data within the meaning of the GDPR. Anonymous data is not subject to the GDPR. "The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes." Assigning an unique alphanumeric code to a thing does not necessarily make the code and/or the thing "personal data". But if you have a set of data that is or can be linked by the unique alphanumeric code (e.g. as a primary key in a set of tables) and you can use it to identify a person, then it is personal data. Either way, to be GDPR-compliant / to mitigate risk you should make some kind of record to reflect that process of thinking and what you decided. And if the answer is Yes, it is personal data, then you should record your "lawful basis" for processing the data and how you decided that. | Yes When personal data is processed in the context of an EU/EEA/UK establishment (for example, by a company with offices in the UK), then all these processing activities must fully comply with the GDPR, regardless of where the data subjects are located. For the UK GDPR: 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 United Kingdom, regardless of whether the processing takes place in the United Kingdom or not. For the EU GDPR: The GDPR applies to: a company or entity which processes personal data as part of the activities of one of its branches established in the EU, regardless of where the data is processed; or … | Sure, you can make such a request, but its not likely to help you. Scammers are criminals and don't generally care about GDPR compliance. Scammers are criminals, and won't just publish their real world identity. Serving them with a lawsuit will be difficult, especially if they are from outside the EU. GDPR lets you sue data controllers, but it's not worth it. You can sue for compliance (e.g. to compel fulfillment of your access request), and you can sue for damages stemming from GDPR violations. Compared to the damages you have suffered, a lawsuit is very expensive. |
How can it be legal in the USA to have live television shows/streams of cops interacting with real people? I always found even the concept of cops having "bodycams" extremely scary and creepy, but having people watch it all live, as a freaking television show or "YouTube stream" or whatever, is even worse. How can that be considered a good idea? Does anyone accused of any crime in the USA have zero right to privacy? I can think of a million situations where it's highly inappropriate to have cameras around at all, let alone making them into "live entertainment" content. And what if it's a false alarm? I would be mentally scarred for life if I had a god damn TV team visit me at my door with a bunch of cops with bodycams who record my face and how I talk and act and have a ton of people watch that live and record and store it forever. You can't even use the (false) argument of "no expectation of privacy in public", since it's my own home and not even a public place. (But even if the same thing had happened in a public place, I would still be against it, whatever the law says.) I'm always baffled by all those videos where nobody ever seems to even mention the cameras. It's almost as if somebody had gone there in private, prior to the cameras and cops, and given them money and/or had them sign some kind of waiver "out of their own free will" that says that they agree to be filmed and it's a show and blabla and they will act as if the cameras aren't there? Is that a thing? Is that the reason why nobody ever mentions the cameras of even looks at them? Have people in general really become so used to total and constant surveillance that this is just not a "big deal" at all to them? Do they even like the cameras, thinking that they will be famous and rich and get tons of fan mail from beautiful women and stuff like that? But then, you'd think that they would look into the cameras and try to "put on a show", but that's also not the case. I'm confused about how this can be both legal and socially accepted. Maybe people have a completely different view of privacy and being "captured" without your active consent. | 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. | There’s some truth in it When a matter, particularly a criminal matter, is before a court or sub judice, public comment is forbidden and may be contempt of court unless they are “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.” Technically, it only applies to media reporting (probably including social media) and only while the proceedings are active. Proceedings become active when there is an arrest, oral charge, issue of a warrant, or a summons. Notwithstanding, there is nothing preventing an organisation having a “no comment” policy on any matter once there is police involvement. | According to this article, the Malmö Administrative District Court found that the intent of the user is immaterial to whether a camera is being used for surveillance, so even if that is not why you are doing this, it counts legally as "surveillance". The law requires a permit from the länsstyrelse (county? government), according to the Kameraövervakningslag (2013:460) (article 8 states the requirement for permit, art. 16 tells you who to apply to). I believe that a tennis court would be considered a "public place", even if privately owned. Art. 17 tells you what goes into an application (there is probably a form), and art. 18 says that the kommun gets to weigh in. Presumably it would be critical to have a consent form signed before any recording happens, and you would include that in the application. | 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. | This article basically says "it depends": If it is genuinely used to improve tenant safety then that is OK, but if it is used to track your private life then that is not acceptable. Cameras that cover communal areas used by several properties are generally acceptable, but cameras covering individual properties are much less so. It sounds like this falls into the latter category. Assuming you haven't got the camera yet, I suggest you write to the Landlord asking for a written justification of the cameras, and a policy for the use of the camera. E.g. it will only be viewed if an incident is reported. Once you have the justification you can then look for inconsistencies (e.g. if they aren't planning to snoop at random times, how are they going to notice someone up to no good? And how would they tell?) You could also just say "no". The installation of this camera probably counts as a material variation of the rental agreement. You could also propose a compromise: you will install the camera, but only provide footage as you see fit rather than allowing your landlord to view the camera at any time. CCTV installations are covered by the GDPR, so you should ask your landlord for the associated paperwork. Amongst other things they will need to state how long they want to keep the footage and provide a justification for that. "We might want to re-run it" is not a justification. Having all this stuff written down will help if you ever suspect he is abusing the footage. Edit Another thought: does the landlord own other properties? Are they having cameras installed too? If not, why not? They should have a policy about this. | The police are probably exempt from liability and the evidence is probably admissible pursuant to California Penal Code § 633 which states (referencing the two party consent statutes): (a) Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits the Attorney General, any district attorney, or any assistant, deputy, or investigator of the Attorney General or any district attorney, any officer of the California Highway Patrol, any peace officer of the Office of Internal Affairs of the Department of Corrections and Rehabilitation, any chief of police, assistant chief of police, or police officer of a city or city and county, any sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a county, police officer of the County of Los Angeles, or any person acting pursuant to the direction of one of these law enforcement officers acting within the scope of his or her authority, from overhearing or recording any communication that they could lawfully overhear or record prior to January 1, 1968. (b) Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders inadmissible any evidence obtained by the above-named persons by means of overhearing or recording any communication that they could lawfully overhear or record prior to January 1, 1968. Cal. Penal Code Ann. § 633. See, e.g., People v. Clark, 372 P.3d 811 (Cal. 2016) (Tape recordings of defendant's telephone conversations with sister of murder victim admitted at murder trial did not violate state Invasion of Privacy Act, since sister was acting pursuant to direction of police inspector acting within the scope of his authority.); Armenta v. Superior Court of Santa Barbara County, 61 Cal.App.3d 584 (1976) (Section 632 was not violated when sheriff's deputies recorded conversation between enrollee in methadone maintenance program and fellow enrollee who was acting as undercover informant, since prohibition under that section does not apply to police informants); People v. Collins, 182 P.2d 585 (Cal. App. 1947) (Testimony of district attorney's stenographer, who listened in and took notes over concealed microphone equipment, was properly admitted.) The year 1968 is when California adopted its statutory invasion of privacy law. Prior to that point and still today, the constitution's protection of privacy and requirement for warrants to do a wiretap is much narrower than the requirement under California's two party consent statute (but for Section 633 above). I also doubt that there is a reasonable expectation of privacy while in custody in the back of a patrol car or while otherwise arrested. There is definitely no expectation of privacy in that situation if the suspects have been given Miranda warnings. | It's illegal if the intent is to deceive. Under S50(1) of the Police Act 1996: Any person who with intent to deceive impersonates a member of a police force or special constable, or makes any statement or does any act calculated falsely to suggest that he is such a member or constable, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. Their intent would need to be proven. It will be fact-specific; in some cases far easier to prove than in others. The criminal justice system is overburdened and underfunded so it is no surprise that these trolling videos are given no priority whatsoever. Further complicating the matter is the need to correctly identify the individual to prosecute. Doing so would require a fair amount of police time, time that could perhaps be spent on more urgent priorities given the relative lack of harm these videos are doing compared to more serious crimes. However, in this video (Would You Help a Police Officer Having An Asthma Attack?) an S50(2) offence would seem to have been committed by the actor wearing the police clothing: Any person who, not being a constable, wears any article of police uniform in circumstances where it gives him an appearance so nearly resembling that of a member of a police force as to be calculated to deceive shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. It does appear that both offences are being committed in these various videos, and the only reason people aren't being prosecuted is practical: there are more serious crimes to focus on, and the police would need to identify who exactly committed this crime--given these all happened at least two years ago, it would be challenging to say the least. They also seem to commit the separate crime of wasting police time, for example by approaching cops in the street and falsely confessing to crimes. Under S5(2) of the Criminal Law Act 1967, wasting police time is a criminal offence. Bringing proceedings in court requires the consent of the Director of Public Prosecutions (DPP) since those proceedings could have a chilling effect on the propensity of the public to report genuine matters to the police in the future. It is likely that while "wasteful employment" of police time was caused by these people, so committing the offence, it is likely viewed simply as "part and parcel" of the job and the officer likely didn't spend any time at all investigating the confessions (depending on their nature). Of course, even if the officer did spend time investigating the false confessions, the DPP would need to give their consent so unless the person has a demonstrated history of doing this (that would stand up in court) or the time wasted was of a particularly serious nature (e.g. the man who falsely claimed to be the Yorkshire Ripper), it seems unlikely consent would be granted. | I am not a lawyer either, though I have been through Pennsylvania a few times. The relevant law is 18 Pa.C.S. 5703, which prohibits recording without consent of all parties (Penna is a "two-party consent" state, like Florida and Washington). Unfortunately, violation of that law is a third degree felony, which has a maximum of 7 year prison. A specific instance of someone getting in trouble for recording their boss is Commonwealth v. Smith (Smith used a cell phone to record his boss, then argued that a cell phone isn't a "device"; the court determined that it is, and that was Feb 16 2016 so who knows the final outcome). An attorney in Pennsylvania might be able to tell you how often people actually serve time for violating the law. You should call one. |
Is it GDPR-compliant to require *public* publishing of personal info as condition for access to a service? Background: For roughly 2 decades I've run my own private email infrastructure for myself, open source projects, and a few other individuals over business internet service intended for such usage. I've recently run into a major German ISP blocking my site (this is a new thing; I used to send to their customers with no problem) and interrupting communication with one of their customers I need to correspond with. After a few weeks of back-and-forth with their email engineering contact giving me moving-goalposts/bait-and-switch about what they want me to do to get unblocked from their system, they are now insisting that I publish legal name and physical street address for the responsible party (that would be me personally) on the web as a condition to access their service. Is this sort of requirement legal under the GDPR? I could understand (while strongly objecting to, but that's not part of the legal question here) "sorry, we won't open our service to you", but making an offer to provide access but making it conditional on what amounts to doxing oneself seems like it should not be legal. Is this (demanding I publish it publicly rather than give them the same information privately) some loophole for skirting around the GDPR? Is there anything else legally sketchy about the demand? I am not in Germany; the other party involved is. More details copied from clarifying comments I posted on an answer (sorry, some of this is technical and may not be useful to non-IT folks): The data was requested after a long series of individual email exchanges with their email engineering department (which has its own separate mail system that's not blocking my site). No emails were flagged as spam and no spam has ever been sent from my site to their mail system. (Fewer than 50 total emails have ever been sent from my site to them.) They seem to have instituted their own in-house policy for IP addresses to accept from based on IP block ownership data (note: not using any of the well-run RBL/DUL type lists) and allow-listing well-known sites. Rejection takes place before the SMTP session even begins (error message prior to EHLO, giving the address of the email engineering department which I then contacted). Initial request was that I provide "full contact info" on webserver associated with domain the IP address reverses to in order to be unblocked, with no indication of what that would entail. Eventually after being (apparently intentionally) vague for a long time they started insisting that include physical street address. Basically, the actionable thing I want to know is whether I have grounds to say something like "The offer to accept mail from my site under the conditions of having published physical contact information constitutes a solicitation for personal data protected by GDPR, and if you are soliciting such personal data, you are required by law to accept it via a secure and private channel." | 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. | The Right to Access is pretty absolute. However, there are some limitations: Is the service even the Data Controller for the data in question? Here, you're talking about notes of one user about another. Is the platform the controller for the notes, or would the note-taker be the controller? Or both, jointly? If the platform weren't a controller but merely a data processor for these notes, it would be illegal for them to disclose the information. Trish also correctly points out that the GDPR does not apply to processing for purely personal or household purposes, e.g. personal social media use. So GDPR would not provide a basis to compel a user to disclose their notes to the data subject, assuming that the note-taker is covered by this exception. Of course, this exception wouldn't apply if the notes are taken for other purposes, e.g. professional networking. Also, this exception doesn't affect the platform. There is an explicit limitation to the right of access in Art 15(4): The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. Disclosing user A's notes about user B to user B would likely violate the privacy rights of A. The notes are both A's and B's personal data. However, the correct balance depends on context. E.g. an employer probably can't refuse to provide access to a performance assessment merely because it was written by an identifiable manager. The UK ICO has provided detailed guidance on this aspect to the right of access. They propose a three-step test: Step one – Does the request require disclosing information that identifies another individual? For example, it might be possible to redact other people's information (but not in your Mastodon notes example). Step two – Has the other individual provided consent? Step three – Is it reasonable to disclose without consent? What is reasonable is highly context-dependent, but UK data protection law gives some concrete criteria to consider. The EU EDPB has draft guidance on the Right to Access. They note that the Art 15(4) can cover a wide range of rights, not just other people's privacy rights. But as in all things, the data controller is required to strike an appropriate balance between user A and B's conflicting rights. In the Mastodon user notes scenario, I think that the note author's rights to privacy should be considered more important than the data subject's right to access those notes, thus making it possible to reject that part of a DSAR under Art 15(4) GDPR. If we assume that the note-taker A is a (joint) controller for these notes, then it would also be necessary to consult them before making a decision about the access request. | The GDPR gives controllers a lot of latitude. They must decide on the correct course of action taking into account the possible risks to data subjects. Specifically, no notification of the authority is necessary if “the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons.” In your scenario 1, you suggest that there is no breach because there is no evidence that the data was improperly accessed. This analysis is faulty: the controller is aware that the data was not properly secured, and cannot rule out that the data was improperly accessed. I would argue this fits the description of a “breach of security leading to the accidental or unlawful … unauthorised disclosure of … personal data” (compare the definition of a data breach in Art 4(12)). Thus, a data breach has happened. The question whether the supervisory authority has to be notified of that breach is more debatable. The controller must assess the likelihood of risks to the data subjects. Here, they can perhaps argue that the risk of disclosure is low. However, the nature of the breached data would also be relevant. If in doubt, the controller should make the notification. The goal of the GDPR is not to punish unlucky companies that suffer a breach, but to protect personal data. Thus, fixing mistakes and cooperating with the supervisory authorities is likely the best approach for most companies. In your second scenario, the data is sensitive – its disclosure has a high risk for data subjects. However, the risk of someone intercepting this data is debatable. Does the risk of interception balance out the sensitivity of the data? That's the data controller's call, but I don't think so. A notification would seem appropriate here. As a technical remark, simply offering HTTPS is not sufficient to prevent MitM attacks – users must be forced to use encrypted connections. If a controller sees MitM as a risk, they are required by Art 24 to take appropriate technical measures. Here HSTS and HSTS preload would prevent the connections from being downgraded to HTTP. Instead of offering insecure connections, the site would become inaccessible. A complementary strategy is to not serve content over HTTP, but have the HTTP server only issue a permanent redirect to the HTTPS URL. | 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. | The GDPR does not outlaw such processing of personal data. It merely regulates how and for what purposes you can process personal data. In general, you can conduct any processing activity as long as it has a clear purpose and a legal basis. Here, the purpose would likely be something like “conducting business with my clients” and the legal basis would be a “legitimate interest”. A legitimate interest always requires a balancing test that weighs your interests against the interests and rights of the affected persons. For example, can the affected persons reasonably expect such processing activities? In a professional setting, it can probably expected that business partners keep notes about contact persons so your intended processing could be fine. The GDPR does impose some general constraints. There are general principles like data minimization and storage limitation – you should only collect data that is necessary for your purpose, and shouldn't store it for longer than necessary. You should think about appropriate technical and organizational measures (TOMs) to protect the processing activity, for example about how your CRM is hosted, how backups are made and how security updates are installed, who has access to the personal data, and how the people with access to the personal data can be trained. For example, such training might inform your employees that they can only use the data in the CRM for business purposes, but absolutely not for personal purposes like asking Gina from reception out for a date. | Caution: I am not a lawyer. It depends on who is doing the collecting and storing. If it is done "by a natural person in the course of a purely personal or household activity", then it is exempt from the GDPR, as per Art. 2. Beware, however, that "purely personal activity" means that you do not share or publish them. In this court case, having the name or phone number of someone else on your "personal" website constitutes "processing of personal data wholly or partly by automatic means within the meaning of Article 3(1) of Directive 95/46". | The goal of the GDPR is to ensure a single market for personal data processing throughout the EU. Since all EU/EEA member states now have equivalent levels of data protection, it doesn't matter in which member state data is stored or processed. Member states cannot generally limit this single market via national laws. Furthermore, secure processing may be possible outside of the EU/EEA as discussed in Chapter 5 of the GDPR. Some countries such as Japan have been asserted an adequate level of data protection so that no special safety measures are necessary. For other countries, a transfer of personal data may be possible under so-called Standard Contractual Clauses which detail the responsibilities of the data exporter/importer. However, the recent Schrems II ruling has invalidated the (partial) adequacy decision for the United States, and has strongly hinted that SCCs only work if the parties are actually able to honor their responsibilities under the SCC (which is not the case with some surveillance laws). Data protection is likely not ensured for processing in the US or by US-controlled companies (even if the processing usually takes place within the EU). Given the sensitivity of health data, this means you should likely avoid using the typical public cloud providers (regardless of availability region). Depending on where your company is based, you might also be disqualified as a data processor by EU data controllers. So the GDPR has no data residency requirements that limit the processing/storage to Germany, but some data residency requirements to keep the data in the EU. However, there may be non-GDPR obligations that mandate how the data can be processed, but I'm not familiar with those (the German regulatory landscape for tele-health is very uneven, differs between German states, but is also improving a lot recently). Since you're processing health data, you should pay special attention to Art 9(3) GDPR which is expanded in German law by §22 BDSG to list a catalogue of possible safety measures you should consider, but none of them are related to data residency. §78 BDSG has further details on transfers into non-EU countries, such as emphasizing that human rights must be guaranteed in the target country. | In my opinion, you are totally free to publish the information. There are two areas of law that can be cosidered - private and public law. In the private law area, you can be liable for revealing trade secrets, but only if you agreed to keep them by a contract. Trade secrets do not exist by themselves (there are minor exceptions, eg. in competition law, but those do not concern us), they must be protected by contracts. Another private limitations, like libel laws, won't apply here. This is not uncommon, but not in cars - you can find clauses like these in software license agreements. Then there is the public area. Is there any regulation, any policy of the state, that prevents you from publishing it? I am not aware you whole legal code of your state, but I doubt there is. It would be a harsh limitation of freedom of speech. Even if the modification could lead to illegal effect (like, modifying toy weapon to kill by rising its power...) it would be only illegal under very rare circumstances. To conclude it - freedom of speech can be limited only if there is sufficient public interest to do so, and I don't see any. |
Is the affirmative defense of self-defense available for the crime of terroristic threats? According to this article, the DOJ may charge individuals who attempt to spread COVID-19 with terroristic acts/threats. Suppose that an individual, say Bob, is being assaulted or otherwise a crime is being committed against an individual for which it is generally appropriate to use self defense in response. Call the criminal Joe. Suppose this occurs in one of the fifty states of the United States (if your answer is state specific please note it in your answer). Suppose that Bob coughs on Joe in an act of self defense and generally attempts to defend himself by spreading his illness. Suppose that an objective lay person and Bob himself believes that Bob is infected with SARS-COV-2 (causing the disease of COVID-19). Also, an objective lay person and Bob would feel that Joe’s actions if not stopped would cause imminent harm to Bob, but would not result in death. Suppose further that Bob believes that his acts of coughing would act as a deterrent to reduce the chance of Joe assaulting/attacking Bob. Is this a legally permissible act for Bob to do? Is there any crime Bob is committing? | This isn’t self defence Self defence involves reasonable steps to end an imminent threat. How does causing the assaulter to die in 2 weeks of Covid deal with the imminent threat? | Yes, both duress and necessity remain viable defenses. The contours of these defenses will vary from state to state, but many states use the Model Penal Code. MPC § 3.02(1) lays out the necessity defense, which it calls justification: Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. MPC § 2.09(1) lays out the standard for duress: It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist. So MPC § 2.09 does not explicitly make imminence a requirement for the duress defense, but it adopts an objective standard, which permits the jury to factor in that consideration. A "person of reasonable firmness" would be less able to resist robbing a bank if the threat was to kill their child in 30 seconds than if the threat was to kill their grandmother in 50 years, during which the defendant can call the police to investigate the threat and the odds are good that granny dies anyway. I'd guess most duress cases fall somewhere in the middle, so it becomes a question for the jury whether the threat was serious enough and imminent enough to merit justification. | 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. | Your ability to assert your Fifth Amendment right against self-incrimination is not limited to cases where you are on trial or have been accused of a crime. Your ability to assert that right is also not an absolute bar against being ordered to testify: if you are given immunity, you can be forced to testify. Alice cannot hold Bob in contempt – only the judge can. Bob can explain to the judge why a simple truthful "yes" or "no" answer is not possible, if he knows how to do that (does he understand the notion of a false presupposition, or unclarity?). He could for example assert truthfully that he does not understand the question (pointing to the distinction between "Charlie's body falling on the vase, causing it to fall and break", and "Charlie acting with apparent intent to break the vase", since it's not patently obvious that the former scenario constitutes "breaking the vase"). However (changing the scenario a bit), he has to understand that if the question is "Did Charlie shoot Delilah?" and the fact is that Ethan forced Charlie to shoot Delilah, saying "No" based on a theory of blame is not reasonably interpreted as truthful testimony. Taking the 5th, without setting forth your basis (not understanding the question) runs the risk that the prosecution will grant immunity from prosecution, and therefore you don't get to avoid answering the question. Immunity covers various things except that it does not cover prosecution for perjurious testimony. See US v. Apfelbaum, 445 U.S. 115: the Fifth Amendment does not prevent the use of respondent's immunized testimony at his trial for false swearing because, at the time he was granted immunity, the privilege would not have protected him against false testimony that he later might decide to give. Immunity is conferred under the control of some applicable statutory law, such as 18 USC 6002 which says that no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. | 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. | 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? | It would depend on your intent, among other things If the prosecution stand a reasonable chance of proving you intended to kill that person by infecting them with coronavirus, they may choose to charge you with attempted murder. Obviously, it would be highly fact-specific. In the alternative (and the far more likely prospect) they could charge you with assault occasioning actual bodily harm contrary to s47 of the Offences Against The Person Act 1861 (OAPA) or inflicting grievous bodily harm contrary to s20 OAPA. The exact alternative charge would depend on the effects suffered by the victim and whether it could be proven that you were responsible. If so, and the infection was particularly severe, it could be an s20 offence (GBH). If not, it would probably be an s47 offence (ABH). Of course, if the person caught it and died, and the causation test was passed, etc. then you'd be looking at a murder charge. The same with attempted murder if they didn't die but the causation test was proven and your intent was also proven. However, realistically the most likely charge is ABH or GBH. | Start with the premise that Person A has so far engaged only in speech, which is presumptively protected by the First Amendment. So unless the speech is for some reason unprotected, the police should not involve themselves. This of course begs the question of whether this speech is protected. The First Amendment does not protect "true threats," which includes "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343 (2003). So the question for the police is whether Person A's texts were meant to communicate a serious intent to commit an act of unlawful violence. Removing First Amendment protection won't be as simple as letting B testify that he truly felt threatened, as the question is whether A meant to communicate a threat. But that also means that for A, it won't be enough to simply deny any violent intent, so the "nothing illegal" disclaimer won't be enough. In the end, this is a question for a jury to decide, should the case ever reach that far. The jury would essentially be asked to engage in mind-reading, determining what A was thinking when he sent those texts. The jury should be instructed to take several factors into consideration when it makes that decision, including the "context" of the remarks (the explicit disclaimer of violence helps A), the "conditional nature" of the threat (the three-strikes langauge helps A), and the "reaction of the listener" (calling the police hurts A). Watts v. United States, 394 U.S. 705, 708 (1969). Practically speaking, if B were to call the police, I'd expect them not to investigate, unless they were awfully bored. If they decided to, I don't think there would be any actionable violation of A's rights, given their obvious inability to divine A's intent based solely on B's account. A court would likely allow them to investigate, but I doubt a prosecutor would allow them to bring charges based on the facts you've described. |
What legal protections exist against doxxing in the UK Doxxing is the unfortunately growing phenomenon of having your personal data posted on public web sites, or even in commercial media (newspapers, TV/radio etc.) What, if any, laws does this break in the UK? What civil legal recourse is available? Does the amount and type of data disclosed matter? E.g., is just posting the real name behind a pseudonym much different to posting the victim's home address or employer as well? As a public service to any victims of doxxing, some advice on how to report it to the police would be helpful too. Most of it on the web is US-centric. | The primary protection against doxxing is likely to be the Protection from Harassment Act (1997) s 1: 1 Prohibition of harassment. (1)A person must not pursue a course of conduct— (a)which amounts to harassment of another, and (b)which he knows or ought to know amounts to harassment of the other. (2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other. The amount only matters insofar as a reasonable person would consider it, in the circumstances, to be harassment of the other. Additionally, you may be able, if you show psychiatric injury, to pursue a tort of psychiatric injury against the perpetrator. | Copyright The photographer, not the subject(s) own the copyright in the picture. So, unless this was a selfie, you have no rights in the picture. Privacy If the photo was taken in circumstances where a reasonable person would expect privacy, then revealing it to others might be a tort of privacy breach. In most common law jurisdictions this area of the law is undeveloped. However, if the photo was taken from a public place (even if you were in a private place), or with your permission, this doesn’t apply. Intimate images In some jurisdictions, the distribution of intimate images without the permission of the subject is a crime. Intimate does not include a photo that is merely embarrassing. Bullying This is probably bullying behaviour but bullying per se is generally not illegal. It might be illegal if the bullying is motivated by a protected characteristic (race, age, gender, sexuality etc.) but that usually requires a context - employment, public accommodation etc. it might also be illegal hate speech even outside such an institutional framework. Similarly, within an institutional context like a workplace or school there might be policies around bullying; these might have the force of law but are probably quasi-contractural matters. However, a private person doing it because they don’t like you and want to humiliate or embarrass you is probably not doing anything illegal. | No You say you won't disclose personal information, therefore, you can't disclose personal information. Now, if your privacy policy said "We won't disclose your personal information except ..." then, so long as you did the "..." that would be fine (subject to privacy law). | Hate whoever you want The law doesn’t care who you hate, who you love and who you don’t give a rat’s behind about, nor does it care about your reasons for doing so. Similarly, the law in most advanced countries doesn’t care if you express your hatred in words. Write as many social media posts as you like decrying the imagined depredations of your hated groups. Record music and videos expressing that hate. Stand on a soapbox in an area set aside for such purposes and shout your hate to the world. Just remember, no one is obliged to supply you with the soapbox (actual or metaphorical). As an aside, there are some countries, which because of their history, have particular laws about what can and can’t be said about Nazis and Fascists (note the capital F). What the law does care about Violence - you can’t hurt people just because you hate them Harassment and abuse - you can express your hate but you can’t get in someone’s face to do it ”Hate speech” - which is not speech where you express hatred. It’s speech that incites or promotes violence against the hated group. Jurisdictions differ about where this line is. The United States requires the violence to be “imminent” meaning the speech has to be targeted to affect the audience to commit violence straight away. Other countries will crack down before that. Anti-discrimination law - which only protects certain groups in certain situations. For example, it is perfectly legal to exclude non-Catholics from taking Holy Communion. Similarly, the Labour Party convention is a ticketed event and they are perfectly free not to issue invitations to Tories. | It follows from case law from the ECJ, e.g. C‑70/10 (28 January 2010) and C-582/14 (19 October 2016), that IP-addresses are personal data. Since my interpretation of the case law differs from the interpretation offered by @Greendrake, I'll go into the relevant case law in a bit more detail than I did in my initial answer. TL;DR: Yes, IP-addresses in server logs are personal data and you need to declare IP-address logging in your privacy policy. As I said, we need to examine the case law I mentioned in the introduction to find out whether IP-addresses are personal data. The first of those are ECJ C-70/10. In this, the court concludes that all IP-addresses are "protected personal data": It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified. (my emphasis) Then, in 2016, the ECJ ruled in a more narrow case ECJ C‑582/14 specifically ruling on dynamic IP-addresses: The court goes through a number of deliberations, then concludes: Having regard to all the foregoing considerations, the answer to the first question is that Article 2(a) of Directive 95/46 must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person. It is very clear from this text that the court does not challenge or invalidate ECJ C-70/10 on static IP-addresses. The court is very careful, in its ruling to point out its ruling is specifically about dynamic IP-addresses. So the ruling of ECJ C-70/10 still stands for static IP-addresses, these are always protected personal data. I believe this case law is summarized in Recital 30 of the GDPR. This recital lists the identifiers that may make natural persons identifiable: Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. (my emphasis). Since it follows from case law that static IP-addresses always makes the data subject identifiable, and dynamic IP-addresses may make the data subject identifiable, I will conclude, based on jurisprudence alone, that: Unless you are able to filter your logs to exclude static IP-addresses. I think you must consider IP-addresses protected personal data under the GDPR. However, in ECJ C‑582/14, the ruling about dynamic IP-addresses hinges on the controller having legal means to identify the data subject by connecting the IP address to some other data. The court seems to think that getting access to ISP logs is the only means of doing that. This is wrong. In 2015, the Norwegian computer scientist Einar Otto Stangvik identified 78 Norwegians who seem to have downloaded abuse material starting only with their IP-addresses. Stangvik did this while working as a consultant for Norway's larges newspaper VG. I know Stangvik and I am familiar with the methods he used. I've tried them myself, and they work. Stangvik did not have access to ISP logs, he did not do anything illagal, and the 78 natural persons identified only by means of their IP-address, combined with other data the Stangvik had legal access to. I will not go into details, I will just say this: If you know how to do this, getting to the natural person when you know the IP-address is not difficult or labour-consuming. To return to the question: It also follows from the GDPR that logging of IP-addresses falls under its definition of "processing". Your privacy policy should list all personal data personal data that is collected by yourself and third parties ("processors" in the terminology of the GDPR) that you rely on. Your hosting company is such a third party, and you need to declare the logging of IP-addresses in your privacy policy. | Nicknames, usernames, or gamer tags are definitely personal data under the GDPR. You are operating under a very narrow definition of “identifying”, which is understandable since the definition of personal data in the GDPR isn't overly enlightening at first glance: […] 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; — GDPR Art 4(1) However, this definition does show that “identifiable” should be interpreted rather broadly. For example, indirectly identifying data is still identifying data – there doesn't even have to be a strong identifier like a name, passport number, or street address. It is also not necessary that identification enables you to determine the real world identity – identification is anything that allows you to single out a person, or to combine data into a profile of that person (compare Recitals 26 and 30). In any case, an online username or user ID is clearly an identifier and will fall under one of “a name, an identification number, […] an online identifier”. If in doubt, ask your data protection authority for guidance. You've correctly understood that you will need a legal basis to process this data, and that legitimate interest could be that legal basis. This doesn't have to be your own interest, so a community interest would be OK. You need to balance the user's rights against this interest. You have performed this balancing and have found that the interest outweighs these rights. You've noted that such leaderboards are a cultural norm and are generally expected, which strongly weighs in your favour. However, legitimate interest is not a free pass but just means an opt-out solution (right to object per Art 21). You should also inform users that the leaderboard is accessible publicly when they join your server (transparency principle per Art 5(1)(a) as detailed by the information obligations in Art 13). In particular, you should use a “message of the day” or welcome message functionality to link to your privacy policy. You should also be aware that other rights such as the right to access, erasure, and data portability apply. As an alternative to legitimate interest (opt-out) you could also consider consent (opt-in), though this results in slightly different data subject rights and is more difficult to do correctly. But I'd agree that legitimate interest is more appropriate here. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. | Does GDPR prohibit reading unsolicited emails from people who have not explicitly opted in to a mailing list? tl;dr: No. I have never heard of this, and I don't see how this could follow from the GDPR. You should follow up with the Secretary to find out how she came to her conclusion. Detailed reasoning: The GDPR restricts the processing of personal data, so it does in principle cover reading email, since reading counts as "processing", and an email may contain personal data. However, Article 2 (emphasis mine) says that: This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. I would read this to mean that a human reading emails is only covered by GDPR if the emails are part of a "filing system" or intended to be. So reading the emails is ok, it's only problematic if you intend to systematically store them. Even filing them, while covered by GDPR, would presumably be allowed, because to actually act on the email, you would have to keep it, and Article 6 allows processing of personal data to "take steps at the request of the data subject prior to entering into a contract" and when "processing is necessary for the purposes of the legitimate interests pursued by the controller". One caveat: If the email contains data that falls under special categories of personal data (Article 9) you may need explicit consent for storage. That covers things like racial or ethnic origin, political opinions, religious beliefs and health information. So if someone discloses a health problem or their religious belief in their mail, you may need to ask them for permission to keep it. In summary: At most, GDPR would require you to promptly delete the email once you no longer need it (which could be immediately if the email is irrelevant to you). If the email contains data you legitimately need (e.g. a complaint you need to follow up on), you are allowed to keep it as required (based on Article 6 (f)). Note that in both cases no explicit consent is required from the email sender, unless the email contains particularly sensitive data, such as political/religious beliefs or health data. |
What happens when a subtenant becomes the landlord in California? In a situation where someone is subleasing part of a residential property from a master tenant , but finds themselves in the position to purchase the property from the landlord. In other words, what if a roommate buys the house you are living in? How might this be viewed from the conflict of tenant rights of both the master tenant and the previously-subtenant, in California? If there are ongoing disputes with the sublandlord and subtenant. If the sublease has not terminated when ownership is transferred If the sublease is co-tenancy (both tenant and subtenant - now landlord occupy the property) I guess in commercial property world it is not unheard of someone subleasing back space from their own lessee. | Just think of the subtenant cum owner as two separate people with two separate roles. Tenant = T Subtenant = ST Old owner = OO New Owner = NO The rights of the tenant vis-avis the new owner will be informed by the lease and the local laws. Generally, if the sale happens in the middle of the existing lease, the NO is obligated by the terms, as is the T. NO cannot just kick T out, and T cannot just break the lease. The lease may say what could happen and local laws will apply. Likewise, ST has whatever contract with T that previously existed. Pretend NO and ST are different people. If T owes NO $1000 per month, and ST owes T $400 a month, that continues even though ST and NO are the same person. Depends on what kind of dispute. See above. All contracts continue, subject to whatever the lease with the original owner and the subtenancy agreement say abut modifying or breaking the lease and sublease. Local laws apply. Note, if the subtenancy was "off the books" or was done when not allowed by the original owner, and if it was not in a place that the local law says owners cannot deny subleasing, then tenant might not have any protection. ST, now that he is owner could just move out and stop paying. On the other hand, even if he is the owner, he cannot just say "I am the owner now, so I am moving back in for free" because the original lease gave the tenant use of the whole property. But ST could just drop out because T always owed OO, and now NO, the full rent. Do you mean if rather than sublease, they were both on the original lease? Interesting, but just imagine it as the obligations before the sale = the obligations after the sale. I don't know though. There are some tax implications for an owner occupied rental. | The house Owner owns the washing machine. Paying the deductible on Owner's warranty has nothing to do with (changing of) the ownership of it. Effectively, the tenant has incurred expenses just for arranging the replacement. Lease specifically stipulates that Tenant is welcome to use washer/dryer but that Owner is not responsible for fixing them if they break. Note that depending on the jurisdiction this term may be unenforceable: tenancy laws often stipulate that landlords have to keep things in working order at their expense (unless things break because tenants misuse/abuse them). In this case the tenant could claim the deductible he paid. But again, this would not affect the ownership of the washing machine in any way. | The wording of the original lease and the renewal form are vital here. The Texas Property code, Title 8, chapter 92 is the relevant state law for residential tenancies. It neither forbids nor guarantees a right of renewal. That is left up to the lease agreement. However, it does require a landlord to provide a tenant with a copy of any signed lease promptly. Specifically Sec. 92.024. LANDLORD'S DUTY TO PROVIDE COPY OF LEASE provides that: (a) Not later than the third business day after the date the lease is signed by each party to the lease, a landlord shall provide at least one complete copy of the lease to at least one tenant who is a party to the lease. ... c) A landlord's failure to provide a complete copy of the lease as described by Subsection (a) or (b) does not invalidate the lease or, subject to Subsection (d), prevent the landlord from prosecuting or defending a legal action or proceeding to enforce the lease. (d) A landlord may not continue to prosecute and a court shall abate an action to enforce the lease, other than an action for nonpayment of rent, only until the landlord provides to a tenant a complete copy of the lease if the tenant submits to the court evidence in a plea in abatement or otherwise that the landlord failed to comply with Subsection (a) or (b). (e) A landlord may comply with this section by providing to a tenant a complete copy of the lease: (1) in a paper format; (2) in an electronic format if requested by the tenant; or (3) by e-mail if the parties have communicated by e-mail regarding the lease. Sec. 92.003 provides that: (a) In a lawsuit by a tenant under either a written or oral lease for a dwelling or in a suit to enforce a legal obligation of the owner as landlord of the dwelling, the owner's agent for service of process is determined according to this section. (b) If written notice of the name and business street address of the company that manages the dwelling has been given to the tenant, the management company is the owner's sole agent for service of process. (c) If Subsection (b) does not apply, the owner's management company, on-premise manager, or rent collector serving the dwelling is the owner's authorized agent for service of process unless the owner's name and business street address have been furnished in writing to the tenant. Dallas municipal law prohibits retaliating against a tenant who complains about improper conditions or requests maintenance, but says nothing about lease renewals. Under ordinary contract law, an offer and acceptance makes a contract, unless the parties have previously agreed otherwise. Moreover, demonstrable practice can make or confirm a contract. If the tenant has paid rent for either March or April in reliance on the renewal agreement, and at the specified renewal rate, and that rent has been accepted, that may well constitute ratification (and thus execution) of the renewed lease. This is if the new lease would hav started before the April rent was due. So the tenant may well have the right to enforce the terms specified in the February renewal form. However, this will depend on what those terms are, and also what renewal provisions, if any, were in the original lease. It might be a good idea to send a letter to the landlord and manager, saying that the renewal form that you signed constitutes an acceptance of their offer, and thus a binding contract, and asking for a signed copy as per section 92.024, mentioning the section number. If it were me, I would send such a letter by both email and USPS certified mail, to both the manager and the landlord, if I had both addresses. I would keep a copy of any communications, and make them all in writing from now on (email is writing, legally). In any case the tenant would be wise to continue to pay rent on time in the amount specified on the renewal form, by some traceable means such as a check, money order, or credit card. I would be sure to use a method the original lease listed as acceptable, or that had been used in the past, except for cash. If I used a check, I would write "payment in full for rent of {address} for {month}" on the back The tenant would be wise to consult a local lawyer who specializes in tenant's cases, there seem to be quite a few. There is a local housing crisis center. It offers regular (twice a month) legal clinics with volunteer lawyers, and can be reached at 214-828-4244 or [email protected]. Such a center might be able to recommend local lawyers. Often an initial consultation with a lawyer on such a matter is free or at a low charge. It would probably be a good idea for the tenant to take some action fairly promptly. 15 U.S. Code Chapter 96 (the federal e-sign act) (section 7001) provides that: (a) In general -- Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce— (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. Also the UNIFORM ELECTRONIC TRANSACTIONS ACT (1999), which has been adopted by Texas, allows but does not require the use of electronic signatures. Thus the tenant;s email response ought to be a vald means of forming a contract. | You understand the business of landlording before you get started. You don't landlord for the purpose of evicting someone. You landlord for the purpose of exchanging keys for a duration for money, specifically by creating a leasehold estate that you sell to your tenant. Your tenant has the leasehold, you don't have the money, in part because it sounds like you didn't collect any before you handed over the keys or confirm your tenants' ability and history of paying. You now want to nullify the leasehold. In general this is the eviction you ask about. You are now reliant on a court in your jurisdiction to enforce the contract law with respect to the lease language and prevailing local ordinances. I cannot speak specifically to NY courts but they have a reputation as tenant friendly so you need to demonstrate your professional approach and locally required paperwork such as a certificate of occupancy, business license, etc. All lined up to make it easy for a judge to agree with you. You have an uphill battle. Turning off utilities (as mentioned in another post of yours) is not a professional move and will bias many judges against you. No certificate of occupancy may mean your original lease contract created a leasehold contrary to a public policy of NY which could put a judge in a bind if they found your case compelling. If a competent lawyer would cost $15k then it sounds like it might be cheapest to offer the tenant a couple thousand for the keys and a signed release to walk away–spend a couple hundred on the lawyer for this. Do not give them the money until they are out and give you the keys. This is called cash for keys. | The brother is under no obligation to buy, the sister is under no obligation to sell. As co-owners they each enjoy the right to use the property; that the sister chooses not to does not change the brother's right. If the property is owned as tenants in common (the most likely arrangement), the sister can sell or lease her share to whoever she likes without the brother's consent. She could even extend an invitation to an outlaw motor cycle gang to be house guests. If it is a joint tenancy, there is no sister's "share"; the siblings own the whole property as an indivisible whole. In that case both must agree to any dealings. | This hinges on what you mean by "spy". Generally, a landlord cannot enter a leased or rented property* without the tenant's consent, nor can their agents. (They can arrive and ask to enter, as can your neighbors whether or not you own your home, but you are not required to acquiesce in either case). A landlord can view the publicly viewable portions of the property at their leisure, as can their agents, or any member of the public for that matter. A landlord could possibly be notified of a tenant's actions in a number of ways: such as viewing the public portions of the property, being notified (or billed) by utilities or public agencies, or receiving complaints from the neighbors. A neighbor has no more, and no less, legal ability to spy on you if you owned your home vs if you rent your home. So, they would have no more right to, say, spy at your house with a telescope than if you owned the property yourself, but no less right to complain if you have a loud (or audible) party or a large number of guests; the only difference being they can complain to someone who could potentially do much more than they could if you owned the property yourself. Thus, the answer to your question depends on what is meant by "spying". *This assumes that this is a separate property; a landlord who rents out a room in their own home often has far greater rights. | You inspected the property online and based on that inspection you signed the lease. You have a legally binding contract. Now, it is not at all like the pictures How? I mean, are these pictures of a different house? If that is so then your contract is void for fraud. However, if the pictures are of the actual house and you just imagined from them that the house would be other than it is then tough luck for you. the stairwell in the house is a huge safety hazard for children OK. Does it comply with relevant building codes? If not then the landlord needs to bring it up to standard: you cannot walk away from the contract. Is it in need of repair? If so, the landlord needs to repair it: you cannot walk away from the contract. If it is compliant and in good repair and you think it is a hazard notwithstanding then you need to manage that hazard: this is not the landlords problem. I refused to move into the house That's fine: so long as you keep paying the rent there is no obligation on you to move in. If you stop paying the rent then it would appear that you have repudiated the contract and the landlord can sue you for damages - probably the costs of finding a new tenant and the rent up until that tenant takes over. | Yes, you can put pretty much anything you like into the co-op statutes. You are actually interested in whether it makes a difference, though, whether the sheriff will come enforce a court order if it came to a trial. a rule that every owner must live in their property, or that everyone who owns a property in the building must also live in the building, or By virtue of indirect effect of basic rights (mittelbarer Wirkung von Grundrechten) a court will never issue an order mandating Diya to live in her apartment, Art. 11 GG. The sheriff will not forcefully “shove” her into her apartment: “You must live here now!” that the majority of homes must be owner-occupied, or Similar, but Art. 2 I GG. Vacancy of apartments is legal in Germany. that new rentals are not allowed, or As soon as Diya is recorded in the Wohnungsgrundbuch (apartment register) as the new owner of units B and C, she incontestably assumes the role of owner about said units. If she rents them out despite the co-op statutes forbidding so, she does nothing illegal (that means breaking state/federal law). After all she is indeed the owner, so there is no fraud involved, § 263 Ⅰ StGB. The fact that she agreed to not rent out is a matter between Diya and the co-op. No court will evict the new tenants from units B and C, because Diya has breached her obligations. However, it might be a just cause to oust Diya from the co-op, § 17 WEG. Yet still it requires severe grounds as it essentially means exercising eminent domain, Art. 14 Ⅲ GG. I tentatively claim it won’t work out as long as Diya pays her share in maintenance and the tenants chosen by Diya are well-behaved. something similar? You will need something that produces evidence. “Diya does not live in unit B” is a claim that needs corroboration in court. […] restrict long-term rentals in general. […] Tenancy agreements are by default unlimited in time. Short-term rents are sort of “forbidden” except if justified by one of the reasons named in § 575 Ⅰ BGB. Hence restricting long-term rentals borders on a blanket-ban on all rentals. |
What is the value in adding an email confidentiality notice? The company I work for adds a disclaimer on the bottom of each email. I was wondering if it had any value. I'll list part of it below: CONFIDENTIALITY NOTICE: This e-mail message is for the sole use of the intended recipients. ... may be privileged ... legal restrictions. ... not the intended recipient ... you are hereby notified that ... dissemination... It's redacted above because there may be some restrictions as to what I'm allowed to put in a public forum. Hopefully this is common enough that the gist of it is well known to readers of this question. I just wonder how valuable it is to have on our emails. | This notice has no legal power what so ever. This has been, and is being, used as a legal backup and a scare tactic. For the most part, if someone gets some sort of "sensitive" information in an email, and it was not intended for them - this notice will serve as a scare tactic to make people get rid of it because of the legal sound of the disclaimer. Also, the senders are preparing themselves for a legal battle by having the notice in email’s body. In case that the sender sent some “sensitive” data to the wrong recipient, they can be potentially held liable for privacy breach of information similar stuff. So, when they show up in court they can potentially use the argument that they did everything within their power to protect the information by adding the disclaimer and the fact that the privacy breach happened is due to a natural human error. Basically, there is no disclaimer that can protect against actual libelous or defamatory content. The most a disclaimer can accomplish in this respect is to reduce the responsibility of the company, since it can prove that the company has acted responsibly and done everything in its power to stop employees from committing these offenses. [1] If you as an employee of a company shared sensitive information or personal information by mistake, you, and the company are still liable for your own action. It can be argued in court that the recipient’s email was not verified, that a human error is not an excuse because the information could have been encrypted with a password, the information could have been transmitted via a phone call or in person, and a bunch of other excuses that will hold the company liable for damages. There is no legal doctrine or theory under which an email confidentiality disclaimer is enforceable in a circumstance like this. There is virtually no scholarly analysis of the impact of email disclaimers and very little analysis by non-scholars. One of the few authors who have commented on the subject suggests that the misconception that email disclaimers have validity may arise from the mistaken belief that the Electronic Communications Privacy Act (ECPA) somehow applies. Michael Santarcangelo, “Do Email Disclaimers Matter?,” Sec. Catalyst (Oct. 17, 2007). But, as this author points out, the ECPA prohibits only “intercepting” emails. Emails that arrive at their destination—even if the sender did not intend that destination—are not emails that have been intercepted in transit, and the ECPA is therefore inapplicable. In short, the ECPA is focused on the criminal intent of the interceptor, not the ability of the sender to execute his or her own intentions. With regard to communications with lawyers, the rules are a little different. Model Rule of Professional Conduct 4.4(b) states, “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” It is noteworthy that the rule requires only notice and doesn’t require refraining from reading the document or prohibit other use of the document. And a number of states haven’t even adopted Rule 4.4(b), so there may not be a requirement even to notify the sender in certain states. Nonetheless, if a court is examining “fairness” in connection with waiver of privilege, a disclaimer on an email sent to a lawyer might help. [4] | Unless you were operating under a non-disclosure agreement he (and you) can use any information that he learned unless it violates IP law. It sound like what you told him is generic (if expert) views on high-level approaches to software design. That is, you didn't give him slabs of code that you own the copyright for or disclose trade secrets that you own. That sort of advice is freely usable by him. There is a reason that consultants in every field don't give away their advice before signing the contract. Now you know what it is. | "Hearsay" is a term used for statements offered in evidence in court that are not admissible because the person who originally made the statement has not testified to it. The hearsay rule is complex, and has many ramifications and exceptions. Legal texts take hundreds of pages to explain all these complications. But the term is not appropriate unless the statement is offered as evidence in court, or there is a plan to offer it. An ordinary email that no one plans to offer in court is neither hearsay nor not-hearsay, it is just a set of statements that may be true or untrue, accurate or mistaken. If for some reason this email were to be placed in evidence in court, the default procedure would be to call the person who originally wrote it to testify, and ask questions like "Did you write this? When did you write it? was it the truth to the best of your knowledge when you sent it?" If the original sender cannot or will not be a witness, then whether the email will be accepted as evidence will depend on what is sought to be proved by the email, and what evidence there is that the email was sent, and by whom, and was the truth as far as the sender knew. If what you really want to know is whether the email accurately quotes the organization's lawyer, just email or write that lawyer, saying something like "Does the attached email accurately represent an opinion that you gave to {organization} as I have been told it does?" | someone I spoke with said "there is to be no recording of this or any other calls". Must I follow this instruction? Although, in Canada, there is no requirement on you to obtain consent to make recording, this explicit objection creates a hurdle. If you simply ignore the objection and record the conversation anyway without letting the objecting party know, you may give them a ground for a claim under the breach of confidence doctrine. The safest move would be to reply: No. There will be recording of this and any other calls. It will be then up to them to hang up. If they don't, they lose all grounds for any claims. | According to my knowledge I am not allowed to share other people's full name nor phone number nor email address without their permission. That is not correct. According to GDPR Article 2: This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. This Regulation does not apply to the processing of personal data ... ... (c) by a natural person in the course of a purely personal or household activity; GDPR Recital 18 states in relevant part: (2) Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. Personal data that is not processed by "automated means", for example data which is transmitted verbally, by hand writing, or by manually sent email, is not covered by the GDPR. Data which is used by a natural person for "personal activities" is also not covered. Consulting one's personal lawyer might well be a personal activity unless it is a business matter. Even if such a transfer of data were in scope for the GDPR, consent of the data subject (DS) is not the only available lawful basis. GDPR article 6 permits any of several possible lawful bases to be used, particularly paragraph 1 point (f) which reads: (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. Also possibly relevant is point (c) which reads: processing is necessary for compliance with a legal obligation to which the controller is subject; In short, providing one's personal lawyer with the names and addresses of relevant people in connection with a legal issue is not at all likely to be prohibited by the GDPR, nor to require the consent of the people whose names and contact info are provided. However, a comment by user PMF reads: The Data Protection laws are mostly for companies, not for individuals. This is an overstatement. The laws do apply to natural persons as DCs, although enforcement is largely targeted at businesses, particularly large, for-profit businesses. | The purpose of that disclaimer is not to prevent reprimands or legal action. It's really as simple as it appears -- it's to inform the readers that the tweets in fact contain the opinion of the person who wrote them and are not intended to be understood as the official position as that person's employer. This is especially important for people who occasionally or frequently convey their employer's official position. It's not supposed to be some kind of magic word that causes something to happen. It's just an attempt to convey accurate information and avoid misunderstandings. | The information in telephone books is public. so are postal change-of-address records. So are records of the ownership of real estate. So are vital statistics such as birth records. So are voter registration lists -- i myself purchased a voter registration list (in digital form) for a municipality which showed people's names, addresses, and the years when they voted, when I was a political candidate for local office in NJ. It cost about $100. I believe that many states also make driver's license information available for a fee to marketers. Credit records are available for certain limited purposes, also. No doubt there are other public sources I haven't thought of. If such a site relies on public records, or other publicly available data, it is not illegal. Many such sites offer to remove names on an opt-out basis, but there is no legal requirement that sites do so. This kind of information is not considered nto be "private facts" under US tort law. Aside from opting out, if the sites provide that option, I don't think you have any recourse. One could ask the local legislature to pass a law prohibiting such sites, or making them require consent, similar to the GDPR that the EU has. But I don't know of any such law in the US to date. | I would probably have a legal disclaimer out of an abundance of caution. That being said, you have a right to free speech via First Amendment guarantees. While that right is not absolute and some words “by their very utterance” cause injury or incite an immediate breach of peace, and do not receive constitutional protection, (there is the old adage you do not have the right to shout fire in a crowded movie theater). This (your blog) is not that. To take it to its logical (or illogical) extreme, there are many things on the internet, in magazines, scholarly articles, etc. that could injure someone or cause damage in the event that one who was not qualified or competent to perform the action described undertook to do so. A child could burn themselves following the directions on a mac and cheese box but they shouldn't be cooking in the first place. The same rings true for high voltage electricity - a non-licensed electrician should probably not create a high voltage power supply. But, will some? Yes. But you are not liable for printing a blog about the practice. On another but related note, if you are a licensed electrician your licensing authority may require that you take precautions to ensure you do not inadvertantly direct others to engage in practices of licensed professionals that could cause harm by giving them information. I doubt this but I don't know because I am not an electrician. As far as could you be liable for writing it....under our legal system you can be sued under a theory of negligence for just about any action someone thinks was unsafe or causes injury. And you never know what a jury will do. But I think that to sue someone for simply writing something would be fairly easily dismissed through a motion for summary judgment by a competent attorney in the event you got sued. If everything a person wrote, that if followed by an unqualified person resulted in injury, resulted in liability for damages than it would have a chilling effect on their First Amendment right to free speech. That said, I go back to my original statement that it couldn't hurt to have a simple liability waiver for extra protection. It could be something as simple as: "The information contained herein is not mean to be comprehensive and is for informational purposes only. You should not undertake to perform anything described herein without adequate training and/or supervision. The Author disclaims any responsibility for any injury, damage, or loss as a result of reliance upon the information found on this site/blog." If you do use a liability waiver, make sure it is bold and obvious. Otherwise, it can backfire! |
How would the law handle a "merge conflict"? Imagine this scenario: Bill A is passed, creating Law A. Bill B is passed. It modifies some parts of Law A, plus it adds some laws that depend on it and some laws that do not. A court rules that Bill A was not validly passed and must be repealed. (Example of the last point: the Australian Petroleum and Minerals Authority Act, 1973. The High Court that the bill had not been "defeated" by the Senate merely adjourning without considering it, so the requirements for holding a joint session to pass it, as Parliament had done, had not been met.) Obviously the legislature would have to meet to resolve the conflict, but before it does, what is the state of the law with the valid parts of Bill B? | what is the state of the law with the valid parts of Bill B? If by "valid" you mean the sections which are unrelated to Bill/Law A, then they retain their status just as if the court had not stricken the unrelated legislation. For instance, see *Loeb v. Columbia Township Trustess, 179 US 472, 490 (1900) regarding invalid sections: "One part may stand, while another will fall, unless the two are so connected, or dependent on each other in subject matter, meaning or purpose, that the good cannot remain without the bad". This is also known as the doctrine of elision. See State v. Tester, 879 S.W.2d 823, 830 (1994). The doctrine is premised on "there [being] enough of the act for a complete law capable of enforcement and fairly answering the object of its passage" coupled with an indication that the legislative intent is "to have the valid parts of the statute enforced if some other portion of the statute has been declared unconstitutional". One way to evidence the latter is by including a severability clause in the statute, Id. Similarly, see Gannon v. State, 372 P.3d 1181, 1203 (2016), and Small v. Sun Oil Company, 222 So.2d 196, 199 (1969). You did not specify the jurisdiction you have in mind. Regardless, that jurisdiction is very unlikely to take a materially different approach to address this issue. | If the parties agree the sky is green then that is taken as fact by the court common-law Common law courts are adversarial and exist to resolve the dispute between the parties. That may involve them making a decision on what the facts are on the evidence if those facts are in dispute. If the parties agree on the facts then the court will not enquire into whether those facts are objectively correct. This is so fundamental that virtually the first thing that happens in a case is the parties submit an agreed statement of facts which tells the court “nothing to see here, move along.” | This is an excellent explanation. All Australian jurisdictions have (in general) common road rules. In NSW these are enacted by Road Rules 2014 regulation under the Road Transport Act 2013. The relevant provision is Clause 306: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm. From your statement (a)(i) and (b) would seem to apply so it becomes a question if (a)(ii) does. Well, you don't know the circumstances so you can't judge if it is reasonable that the rule not apply: if the police car were involved in a collision, caught on a red light camera or booked then the driver would have to show that it was. It is worth noting that some road offences like drink or dangerous driving are not in the Road Rules, they are in the Crimes Act and so the exemption doesn't apply to them. It is also not a shield from civil liability although the difficulty of proving negligence goes up because disobeying the road rules is no longer enough. | No. Under U.S. Jurisprudence, any vagueness in a criminal law must be given an interpretation favorable to the people, rather than the government, since the government had the opportunity to make their intentions clear when drafting the law. Additionally, the U.S. Constitution has what is called the "Vagueness Doctrine" which renders vague laws at any level of government to be unenforceable (Found in the 5th and 14th Amendment as an interpretation of the Due Process clauses). The quickest way to overturn the court's ruling is for a legislature to pass an amended law that defines the vague terms in terms that are better understood and can give the courts a proper interpretation of what should happen, however, no one who was charged under the law can be recharged under the new definition. | I see lots of possible issues here, including: Will the Apprendi decision be given retroactive effect? Were the constitutional issues raised at the time of trial, and if not will a court permit them to be raised later? Will a court agree with the law review publication? Will the facts in your case be sufficiently similar to the cited case? Beyond those, in a section 1983 suit many public employees have qualified immunity unless the legal point was already "well established" when the violation occurred. To pursue this you will need to work with a lawyer skilled in this area. No one on this forum can possibly given you a reliable answer as to whether you have a reasonable case. | 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. | I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed. There are a couple of Freedom of Information requests to the government which state very clearly that it won't work: https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer: https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court. | (I am not your lawyer. I am not here to help you. If you are reading this because someone has died, please stop and instead read the Scottish Courts and Tribunals guide to dealing with a deceased's estate in Scotland, or contact a solicitor.) Yes, in general. Section 1 of the Wills Act 1963, which is in force in Scotland, specifies that "[a] will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed." Furthermore, Section 4 states that "[t]he construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will." "Construction" here refers to interpreting the language and effect of the will. So if the will was validly executed in England, it should also be in force in Scotland, and a Scottish court will give it the same meaning it would have had under English law. Furthermore, the same rule of validity seems to apply in both England and Scotland: Wills Act 1837 section 9. There may be other Scottish laws affecting the disposition of the estate that differ from English law. Relevant statutes include Succession (Scotland) Act 1964, section 21A, which seems consistent with Wills Act 1963. (I am trained in U.S. rather than English or Scottish law; I'm trusting the accuracy of the UK's excellent online legislation archive for the proposition that the statutes cited are in force in Scotland. I haven't checked the case law for contrary interpretations.) |
Is it against law to implement security theaters? In cybersecurity, we have a subject called "security theater" which means implementing a feature that only looks like a real security mechanism but doesn't do anything literally. Is it against the law for, let say, a company to implement a layer of security which is indeed nothing but a theater (in both deliberately and indeliberately cases)? It gives false confidence for the users of the system thinking their data are protected by the machine while it's not. | Given that obscurity is not security, the company potentially exposes itself to claims of: Misrepresentation under consumer protection laws, or even fraud (things that you sell are not quite what you claim they are, and you know it) Negligence (people rely on your goods/services to be secure as per your claim but you take this very lightly and they get burnt). | There are several Official Secrets Acts that are in force in the U.K. The one relevant for your question is the Official Secrets Act 1911. See Section 3: For the purposes of this Act, the expression “prohibited place” means ... any work of defence, arsenal, naval or air force establishment or station, factory, dockyard, mine, minefield, camp, ship, or aircraft belonging to or occupied by or on behalf of His Majesty ... [and there are other things that can be prohibited places, including places declared by order] To be in violation of the Act, it is not enough to merely be in the area. See Section 1: If any person for any purpose prejudicial to the safety or interests of the State... approaches, inspects, passes over or is in the neighbourhood of, or enters any prohibited place within the meaning of this Act... he shall be guilty of felony There is a bill before Parliament that would redefine prohibited place (but still capturing the base you have photographed) and create additional offences in relation to prohibited places. See this factsheet and the current text of the bill. Importantly, Section 5 would create a new offence of "unauthorized entry etc to a prohibited place," which would make it an offence to access a prohibited place without authorization while knowing (or while one reasonably should have known) that the access was unauthorized. No purpose prejudicial to the U.K. would be required. However, given the lesser severity of the wrong, the maximum punishment would be six months in prison or a fine. | Generally, such sanctions prevent certain sorts of transactions in goods and services with nationals or entities of the nation under sanction. The exact list of transactions prohibited or restricted varies. If Open source software were being provided as a service, so that the recipient paid directly for a license, or for customization or configuration work, or for some sort of consulting or assistance, such transactions could be banned or restricted by a sanctions regime, but might not be. (If the sanctions included that particular class of transactions.) However, if it is merely a matter of an open source product being published, for anyone to download, install, and use, I don't see how that would be barred or restricted by any sanctions of the sort recently in use. | There is nothing to forgive. The question presupposes that it is a crime to lay eyes on classified information. Crimes related to classified information generally have an element of intent. For example, from 18 USC 793 (emphasis added): (a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation ... (b) Whoever, for the purpose aforesaid, and with like intent or reason to believe ... The other subsections are similar, but subsection (e) is most directly applicable to the present hypothetical, so here it is in full: (e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; Seeing the files is not per se a crime. Finding the files and failing to ensure that they are returned to the government (or retuning them to the government while transmitting the information to unauthorized parties) is a crime. | The main impediment is identifying exactly what "a law" is. When people talk (casually) about "the law", that can refer to statutes enacted by Congress, regulations set forth by administrative agencies to articulate specifics of those statutes, and Supreme Court rulings as to what "the law" is or says. The canonical example of "a law" is a statute passed by Congress. Under that understanding, you could point to the US Code and ask the question "how many", though you may have to also subtract things ruled unconstitutional by SCOTUS (they aren't removed from The Code, unless actually repealed by Congress). In the US code, there isn't an enumerable element "a law". Title 17 pertains to copyright; Title 18 pertains to crime. There isn't just one law about crime and one law about copyright. There are 12 chapters in Title 17; Chapter 1 has a couple dozen sections. Sections can get fairly minutely subdivided: there is no clear point at which you can say "this is one law, this is another". However, it is legally irrelevant how many there are – unless Congress passes a law that counts likes ("must repeal two laws for every new one passed"). The immediate product of congressional enactments is the US Code; the immediate product of administrative rule-making is the Code of Federal Regulations. Supreme Court decisions are also published in United States Reports, though I don't if there is an exhaustive online compendium of all rulings. Also note that things passed by Congress are "Laws" (some public, some private). Things in the US Code originate in such acts of Congree, but not every act of Congress affects the US Code, for example PL 118-81. When new subject matter is first introduced it is usually entirely contained in the corresponding law passed, but subsequently it can be amended, and an amendment to copyright law could be snuck into a bill generally about terrorism. I think that the stuff in the US Code corresponds to what most people think "a law" is, but it's better to look at the US Code as a single thing – "the law" – rather than try to count individual laws. If you are armed with access to all of these resources, you would also need to know where to find relevant law. Once you find all of the applicable text, you simply apply general legal principles to reach a conclusion, then hire a lawyer to determine where you went wrong, then hire another lawyer to determine where he went wrong. At least in difficult cases. Fortunately, although enacted bills often glue stuff together in crazy ways, when it is assembled into the US Code, it is organized more sensibly. Still, not all crimes are defined in title 18 (there 1re 52 other titles to search to find crimes). | Nope. 18 U.S. Code § 1028 - Fraud and related activity in connection with identification documents, authentication features, and information (a) Whoever, in a circumstance described in subsection (c) of this section— (1) knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document; [...] (c) The circumstance referred to in subsection (a) of this section is that— (1) the identification document, authentication feature, or false identification document is or appears to be issued by or under the authority of the United States or a sponsoring entity of an event designated as a special event of national significance or the document-making implement is designed or suited for making such an identification document, authentication feature, or false identification document; So you're 1) producing a false identification document that 2) appears to be issued by the United States. Whether you'd actually be prosecuted for this is something that I'm not qualified to answer. | Theft is universally a crime in virtually every jurisdiction. Insofar as a state has a criminal code and a functioning judiciary, theft will always be a crime. It is also a basic legal principle that theft is a tort as well (in other words, a civil wrong incurring damages to an individual that can be remedied in a court of law). A key part of the problem in failing to make theft a crime, is that in the absence of a substantive penalty in terms of a fine or imprisonment, theft becomes a low-risk, high-reward activity where the maximum penalty is simply the repayment of stolen goods (with relatively minimal loss). This fails to provide an effective deterrent to this socially frowned-upon activity, and rates of crime would skyrocket. It is appropriate, therefore, to make theft a crime (and all jurisdictions do so), as all pillars of criminal justice immediately apply. Edit: As @/JBentley correctly points out, penalties do in fact exist in civil law. That said, the power of incarceration, perhaps in this case the ultimate deterrent, is largely unavailable in civil cases. The ultimate point - that theft is rendered a more sound and legitimate enterprise based largely on gambling - remains the same. Additionally, not all individuals have the time or effort to file small claims and follow cases to the end. Making theft a tort-only offense would cause extraordinary difficulties in enforcement as many would consider the loss of perhaps a small article relatively insignificant compared to filing in small claims court. | Footage of an arrest is clearly evidence: tampering with it is a crime. Notwithstanding, destroying someone's personal possessions without authorisation is a crime. Accessing a computer (which all modern image and audio recorders are) without authorisation is also a crime. |
Has anyone been prosecuted for making/using malware? Has anyone been prosecuted under the Computer Misuse Act 1990 Section 3A for using or making malware in the UK? I have found example in the US, but none for the UK. | There is an excellent resource for looking at Computer Misuse Act cases: http://www.computerevidence.co.uk/Cases/CMA.htm There have been several cases where people have created DoS tools, botnet software, or credential stealing malware and used them. For example, web designer Simon Vallor created Gokar, Redesi, Admirer mass mailing viruses that infected 22,000 PCs worldwide. Defendant pleaded guilty, convicted and sentenced to two years jail. BBC news story | 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? | This is a developing area within the law. In the United States, 18 U.S.C. § 1030 (Computer Fraud and Abuse Act) governs. However, the law is broadly written. This means creative prosecutors can and do win federal criminal cases by arguing the law should apply. Whether violating a website's terms of service should be considered a federal crime subject to the Act has been a subject of hot debate. In United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), the 9th Circuit decided violations of use should be considered breaches rather than crimes. However, the district court refused to dismiss some charges against Nosal when the case was returned, and a jury conviction resulted in a prison sentence. At least three different circuits have arrived at other interpretations of the CFAA. Draft legislation (H.R. 2454 and S. 1196) would limit the scope of the CFAA by excluding TOS violations, however, it hasn't been adopted as of this writing. That CAPTCHA breaking violates website terms of service isn't really in question. For example, see U.S. v. Lowson, 10-cr-114, U.S. District Court, District of New Jersey (Newark) in which the judge brought a criminal case to which two defendants plead guilty to wire fraud, one plead guilty to misdemeanor computer crimes, and a fourth went on the lam. But does for-profit CAPTCHA solving violate U.S. law? Given the state of the law, one could make a case either way. Given the industry's reputation, serious questions about intended use, and questionable labor practices, that's a significant risk. | In the UK, no offence is committed, however many public locations cite the Data Protection Act 1998 as a reason to stop people taking pictures. DPA does not mention this topic at all, and is a red herring (however informing the location of this is unlikely to help, I have discovered) In fact, in the UK, the only laws that appear to exist cover either specific locations and properties (eg military installations) or using photography to take pictures of individuals in areas where they have an expectation of privacy. The Photographer's Rights Guide published by digitalcameraworld in 2012 is still current as far as I can see. It has this specific guidance: Photographers Rights: Taking Pictures of People in Public Are you breaking any law when you’re taking pictures of people in public? Probably not, but the position under UK law is uncertain. There are currently no general privacy laws under UK law, but the UK courts must take into account the European Convention on Human Rights, which gives everyone the right to respect for their private and family life. As this is an area of law that has been developing rapidly over the last few years, it is hard to be certain what will constitute an infringement. The key issue is whether the place the image is taken is one where a person would have a reasonable expectation of privacy. For example, it has been suggested that the right of privacy of a child could be infringed by publishing a photo of them with their parents in a public street. It is therefore advisable to be careful when taking photos intended for publication, even where the subject matter is in a public place. Failure to obtain a model release for the use of an image will certainly make it harder to sell the picture to stock libraries. Photographing children The same laws apply to adult and child subjects, but a child does not have the legal capacity to consent and a parent or guardian must therefore do so on their behalf. Be aware that schools, leisure centres and places where children and adults gather usually have their own photography restrictions. Although decent photos of children (see our tips for better pictures of babies, children and teenagers) taken in a public place may be fine for non-commercial use, seek permission from the child’s parents or guardians and don’t shoot covertly with a long lens. For commercial images, you’ll need to get a model release signed by the parents. Also read the section on the powers of police and security guards. | Sure, you can make such a request, but its not likely to help you. Scammers are criminals and don't generally care about GDPR compliance. Scammers are criminals, and won't just publish their real world identity. Serving them with a lawsuit will be difficult, especially if they are from outside the EU. GDPR lets you sue data controllers, but it's not worth it. You can sue for compliance (e.g. to compel fulfillment of your access request), and you can sue for damages stemming from GDPR violations. Compared to the damages you have suffered, a lawsuit is very expensive. | Your code is considered free speech (Bernstein v. United States) and you have allowed the use of the code via the MIT license. Since the application of your code is very generic and is not specifically targeting anyone. You probably are not criminally liable. This is simply writing a "Proof of Concept" for security testing purposes. That same way Metasploit, Nessus, and Nmap have actual exploit code but are considered tools of the trade. Now if you go around using your spyware on non consenting victims. You might get a visit from some people with guns and badges that have 3 letters on them. | There is no law against a person creating and distributing such a poster, to the best of my knowledge. However such a poster pretty clearly implies that the person shown is guilty of a crime, or at least strongly suspected. If the store somehow made an error, pulling the image of a person who did not use the stolen card or there is some other error, the person pictured might well suffer a significant loss of reputation, and might sue for defamation. Damages could possibly be significant. Such suits have, I believe, happened when surveillance photos were posted but there later proved to have been an error. Mary might wish to double check how sure the store is that the photos are of the person who actually used the stolen card. | So-called AI software does not enjoy a special legal status (at present: one never knows what new law might be added). The question of whether any software can be distributed "safely" or "responsibly" is also not a legal issue. Nor is "true sentience" a relevant consideration, and nothing is guaranteed. When you distribute software of any kind, there is an implied warranty that the product is "fit", and if software kills you, you may be able to sue the creator for negligence. A software creator may then want to disclaim liability, by saying "WARNING: THIS PROGRAM MAY KILL YOU. OCP IS NOT LIABLE FOR ANY INJURIES ARISING FROM USE OF THIS PRODUCT". This may or may not actually remove liability. In the UK "liability for negligence occasioning death or personal injury cannot be excluded", so such a disclaimer will not prevent a suit against the manufacturer. In the US, the issue is determined at the level of the state – here is a summary of the law in the states. Probably the primary question would be whether such a disclaimer is an unconscionable term, and the second question is whether the act constituted gross negligence (not simply "negligence"). Mississippi exceptionally does not allow disclaimers, but even then, it does allow disclaiming liability when it comes to computer hardware and software. A software disclaimer is not inherently unconscionable, though perhaps some specific disclaimer would be found to be. Courts typically disfavor disclaimers in the case of gross negligence, and again determining what constitutes "gross negligence" is determined on a state by state basis. If the act shows "reckless indifference to the rights of others" and "failure to use even slight care or conduct that is so careless as to show complete disregard for the rights and safety of others", then the act might be grossly negligent. |
Can a soldier enforce federal law? I was reading a book(fiction) recently and a kidnapping happened. A woman escaped and ran into several people. One of them being a soldier with his wife. As the kidnapper tries to find the escaped woman, he also runs into these people. The wife wants to call the police, but the soldier says he doesn't want the guy leaving before they get there. Then he said "I'm on active duty and I'm tasked with upholding federal law". Is this in any way true? Can a soldier act as a law enforcement officer in a situation like this? I'm aware there is a law that states the military can't operate on U.S. soil, but I feel like the author of the book knows something I don't. | united-states Under US law, any citizen may hold a person caught in the process of committing a felony (which kidnapping surely is) for the police. A soldier has no special authority. Indeed under the Posse Comitatus Act, the military has more restricted authority in such matters than citizens in general. However note that the book doesn't say the soldier was justified. I do not find it implausible that a soldier might have believed that the military had such authority. | There is a special type of law enforcement officer, called a "bailiff" who is charged with maintaining order in a courtroom, and often, a bailiff is a direct subordinate of a judge who must follow the judge's orders. Judges can also issue special kinds of court orders, called "writs" which are a direction to a law enforcement agency generally to take certain action. But, in these cases, the law enforcement agency is effectively an "independent contractor" in relationship to the judge with considerable discretion regarding precisely how and when a writ is carried out. Somebody in the law enforcement agency to which a writ is directed is required to take action, but no individual law enforcement officer is personally compelled to comply with this order. The quote in question is not a statement about the legal authority of a judge, however. It is a statement of "realpolitik". The judge can't physically force or threaten law enforcement to do what they are told to do by a judge. The cops have the guns, not the judges. Instead, the judge relies upon law enforcement obeying the judge's orders because that is what law enforcement officers do. It's right in the job title. But, if law enforcement chose to ignore judges, in general, there is very little that judges could do about that (and in some countries, law enforcement does routinely ignore judicial directions). Some forms of executive branch authority to defy judicial orders is even legally codified, most starkly in the case of the pardon power. | None of the factors you list about Charlie committing a crime, about to commit a crime* or being responsible for the officer's injury apply to whether or not Bob can shoot Charlie on behalf of the officer. On the other hand, if Charlie's actions lead Bob to the reasonable belief that Charlie represents an imminent threat of death or grave bodily injury to anyone then Bob will be justified in using force, including deadly force, to stop Charlie. I'm aware of many states that also allow the use of deadly force to prevent the imminent commission of a forcible felony. A normal citizen can go to great lengths to assist the police and stories of citizens coming to the aid of police officers are easily found. There may be some reason the police officer felt the need to use deadly force against Charlie. Bob will need to make his own determination based on all the factors available to him, which may include communication from the officer. If Bob decides to shoot Charlie then an investigation will center on whether it was reasonable for Bob to deduce that the use of deadly force was justified given the information available to Bob at the time. Some states have laws that penalize refusal to aid a police officer. A list of them can be found on this wikipedia page. Notably, California just repealed their statute requiring assistance. *The statutes of some states allow the use of deadly force to prevent the commission of felonies, typically forcible felonies. However, just because a crime is listed as a forcible felony doesn't always mean that deadly force can be used to stop the crime. An example comes from Florida where the statutes state that deadly force can be used to stop forcible felonies, the statutes also define burglary as a forcible felony. However, the courts have ruled that the use of such force is not reasonable where the structure being burglarized is unoccupied. | Police officer failing to act is specifically protected by Castle Rock v. Gonzales, 545 U.S. 748 (2005)? Almost every general rule of law has exceptions. In particular, there are exceptions to the general rule that there is not a legal duty to take action to enforce a law. Law enforcement officers have a duty to guard the physical health and safety of someone in their custody. When they are acting as a team, this duty is owed by all of them. Law enforcement officers are responsible for crimes that they commit. An "aiding and abetting" charge implies that the jury must find that the officers present were intentionally working together as a team to commit a crime, rather than acting as individual. In the same vein, you can be liable for conspiracy or felony murder by serving as a look out for a murderer, even if you don't actually pull the trigger. These officers actively prevented third-parties from intervening or creating a credible threat that they would intervene if a bystander stepped in to help Floyd and as part of the same patrol owe duties with respect to each other's conduct that unrelated third-parties dod not. | If President Trump refuses to execute the war, does that become an act of treason on his part? Probably not, but it depends on the definition of treason. Congress could decide that it is, impeach him, and remove him from office. They could also remove him from office without using the term treason. Is he required to act on such a resolution? Not really. As chief executive, he has discretion to prioritize the tasks assigned to him by congress. Furthermore, there is plenty of precedent in international affairs for countries being legally in a state of war without any actual combat or other hostilities. If he doesn't, is there any recourse other than impeachment to force US armed forces to attack RF interests at home and abroad? There's always political pressure. But there's no way to relieve the president of his command of the armed forces without relieving him of his office. Aside from impeachment by the congress, this can be temporarily achieved by the cabinet, as specified in the 25th amendment. POTUS is the commander-in-chief, but, at the same time, he is not allowed to unilaterally decide who may or may not cross the border into the United States. The president's ability to make immigration policy and the fact that such policy is subject to judicial review are unrelated to his powers as commander in chief. Immigration is a civil and criminal matter, not a military one. The president's powers in this regard are delegated to him by congress, not specified in the constitution. On the other hand, the president's role as commander in chief of the military is explicit in the constitution. Do the judges also have a power to compel armed forces to take actions which a sitting President is refusing to take? The judiciary does not have the power to order military operations. | Hot Pursuit What you're describing is a hot pursuit, and in the US, common law says that police officers crossing state lines while in hot pursuit is absolutely allowed. An active pursuit is considered an exigent circumstance, which gives police all kinds of temporary powers they don't normally have. | 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. | An individual does not have authority to "issue" a restraining order. In the U.S. only judges can issue such orders. The guidelines and policies for obtaining a restraining order vary by jurisdiction, although in the end a judge can issue any order he wants. So in theory you might be able to find a judge who will issue an order for any or no reason. In practice I'd be surprised if many judges would abuse their office to gratuitously harass people in this fashion, though there are probably a few amusing/disturbing examples out there to the contrary. |
Does copyright on a resume prevent you from sharing it? As I understand it a resume is automatically considered the intellectual property of its author, and the author has a right to determine how it will be copied ie. distributed. Does this actually hold any practical significance? Does this mean that when someone sends you their resume, it is unlawful to pass it on to others unless the author gives permission? Can you get sued if the resume finds its way to someone the author did not intend to see it, and the author suffers some harm as a result? Is distributing a resume in the context of professional networking considered as implicit consent to allow sharing with anyone under the US legal system? | You need permission to copy unless fair use applies Does this mean that when someone sends you their resume, it is unlawful to pass it on to others unless the author gives permission? First note that copyright law only applies to copying. If someone were to give you a physical copy of their resume (assuming such a thing would happen in this day and age) then giving this to someone else without copying it is not copyright violation. There may be privacy issues involved but that’s another issue. Further, in the United States, there is a fair use doctrine which allows limited copying without permission in certain circumstances. This is likely to apply in a lot of situations around copying resumes. Finally, permission does not have to be explicit. For example, if you receive a resume in the course of a job application then permission to make copies for that purpose can be assumed to have been implicitly given. Can you get sued if the resume finds its way to someone the author did not intend to see it, and the author suffers some harm as a result? Under privacy law, possibly. Under copyright law, no. What you can be sued for is making a copy. It doesn’t matter where this ends up. Is distributing a resume in the context of professional networking considered as implicit consent to allow sharing with anyone under the US legal system? No. It’s explicit consent because those networking sites have Terms and Conditions that explicitly deal with copyright. For example, if you post your resume on LinkedIn, you agree to this. | No. Only the company owns the copyright, not its shareholders. A company is a separate legal entity with its own capacity to own property. Copyright is property, not infection that can be spread onto whoever is close enough. Pretty much like shareholders can't just share the use of the company's tangible assets, they can't wet their beaks in the copyright. As a shareholder, what you could do is to appoint a director/CEO that will give you license to copy (or even transfer the copyright) — if you have enough shares to fire the current CEO and put yours. The CEO will get into legal trouble with other shareholders/creditors, but you'll still enjoy your right to copy. | The answer depends in part what venue you're talking about, e.g. Reddit, Facebook etc. The details are revealed somewhere in the Terms of Service for that venue. The general pattern is that you are allowed to use that venue, provides you grant permission for the service to do what they do with your content. You cannot legally send them a take-down notice for your stuff, because a take-down notice requires you to say that the stuff was posted without your permission (and that is false – and you can be punished for making that statement). There could be a venue where they do not hold you to an irrevocable license, in which case you could revoke that permission (but not Reddit: you granted them a "royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, perform, or publicly display your user content in any medium and for any purpose, including commercial purposes, and to authorize others to do so"). I've seen a site that actually asserts ownership of user-contributed content (I don't know if their TOS ended up being litigated) – if is not at all hard to write a TOS that includes transfer of copyright, rather than granting of a license. The only hard parts are (1) figuring out what you want in terms of permission to use and (2) whether your answer to (1) means nobody will use your service. SE and Reddit TOS probably are as close as you need to get for what you describe. | Ask As an employee, anything you create in the course of your employment belongs to your employer. Now, writing textbooks is probably not in the course of a schoolteacher's employment. Note that I said "probably" - it's possible that if you publish and it becomes wildly successful your employer might just want to go to court to check how "probably" actually falls out in practice. So, the simplest thing is to tell your employer that you are thinking of writing a textbook for your subject in your spare time and would they please disclaim any copyright claim they might have. If they won't, find another employer (or don't write the book). | In the US, the author would be able to wind an infringement lawsuit against the re-publisher. Title 17, the US copyright law codified, grants the author the exclusive right to authorize republication, and does not require that a person use their real name. The argument "It was on the internet, it's in the public domain" is utterly without legal merit. The same goes for the assertion that a person loses his rights if he is uncontactable. The author has stated the terms of the license, so there isn't even a reasonable argument that the infringement is innocent (unknowing: "I thought it was with permission). There is no requirement that you have to allow a potential user to hassle you about the license terms. The one thing that is special regarding anonymous and pseudonymous works is that under 17 USC 302, "copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first". For a work whose author is identified, copyright "endures for a term consisting of the life of the author and 70 years after the author’s death". This assumes that the host site has not preempted author's license: Stack Exchange, for example, preempts an author's exclusive right, so you can copy stuff from here accorting to the SE terms of usage. | Copyright protection exists for any work (picture, paragraph, song etc), and persists for many years until it expires. Unless the work was created a long time ago, or was created by the US government (not the same as "funded by government money"), you should assume that the work is protected. That means that you must have permission to copy it. Sometimes, a work has associated with it some such permission, in the form of a "license". Without such a license, you have to request the copyright owner for permission to copy – whether or not they say that the work is protected by copyright (because by law it is protected, so they don't have to say that it is). If you request permission to copy, and do not receive the required permission, then you cannot legally copy the work. The copyright holder has no obligation to explicitly deny permission. You can certainly list the URL for an image, you just cannot copy the image in your book. | 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. | Yes, except for the part where you say "thus". Copyright protection isn't limited to published works, though in the past this was the case with US law. Current US law defines publication as the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. Web distribution is one way to distribute a protected work. The distinction between published and unpublished works matters in terms of registration requirements, it figures into the question of the nationality of the author, the duration of protection for a work for hire and (pseudo)anonymous works, as well as the duration of protection for works created before January 1, 1978 but first published between then and January 1, 2003, and so on. The US Copyright office provides guidance that derives from court cases, and they have this to say about published vs. unpublished. They give as an example of publication ("Offering to Distribute Copies or Phonorecords to a Group of Persons") Publication occurs when copies of a photograph are offered to clients, including but not limited to newspapers, magazines, agencies, wire services, and websites with a license permitting further distribution or display of the photograph. also An offer by the copyright owner on a public website to purchase and download an app that they developed and made accessible on that website constitutes publication of that app. German copyright law makes mention of "publication" as well, for instance The right of publication and of exploitation of the work accrues jointly to the joint authors; alterations to the work shall be permissible only with the consent of the joint authors. However, a joint author may not refuse his consent to publication, exploitation or alteration contrary to the principles of good faith. Each joint author shall be entitled to assert claims arising from violations of the joint copyright; he may, however, demand performance only to all of the joint authors. §6 says that (1) A work shall be deemed to have been published when it has been made available to the public with the consent of the rightholder. (2) A work shall be deemed to have been released when copies of the work have been offered, with the rightholder’s consent, to the public or brought to the market after their production in sufficient quantity. An artistic work shall also be deemed to have been released when the original or a copy of the work has been made permanently available to the public with the consent of the rightholder. One would have to inquire into the specifics of German law to know if "putting one copy on a website" constitutes being brought to the market after production in sufficient quantity. |
Is there a law that requires allegiance or respect to the Office of the President of the United States? It has become common in America today to hear people refer to the President of the United States as "not-my-president". Is such a statement as saying that the head of our Executive Branch is "not-my-president" something that's unlawful for any citizen or member of the military? Although we have freedom of expression in America (and I wholeheartedly support it!), there is already a proposal to make it illegal to burn the flag of the United States. I do believe a kingdom divided against itself will hardly stand! So likewise--short of encouraging draconian rule--I'm wondering how as a country we've considered or dealt with reducing or curbing the division that can arise from such public displays of rebellion against the leader we lawfully elect into office. Perhaps there's a rule about it that would only apply to the military. Or maybe there is something requiring allegiance or respect out of each citizen for the Office of the President. If not, I'd like to know if any such bill has ever been introduced to the House of Representatives, and whether there is any online reference where I can find out more about past issues or ongoing discussions regarding this matter. | The US developed from an earlier kingdom, and the First Amendment enshrines the main issue that led to our departure from that kingdom. The underlying political premise has been that disagreement is to be dealt with rationally and not through force, such as where opinions contrary to those articulated by the government are squashed (in order to eliminate divisions). There have been numerous laws passed in the US to outlaw "contrary" speech including "disrespectful" speech, and they are constantly being overturned by the Supreme Court. Texas v. Johnson, 491 U.S. 397 and U.S. v. Eichman, 496 U.S. 310 are two recent reaffirmations that such laws are unconstitutional. The only way such a law can work is if the Constitution is amended to in some way re-write the First Amendment, like this. Outlawing indirect insults towards political figures ("not my Speaker of the House", "not my FBI director") would require an even more extensive suspension of the First Amendment. It is possible that at some time, a bill was introduced to outlaw saying disparaging things about POTUS, but I would be surprised if it got out of committee, because it would fail challenge in court. The most-likely retrenchment on our freedom of expression is likely to be a flag-burning law, which has relatively wide support in the US. There are a number of interpretive problems associated with the key concept "physical desecration". Even more interpretive problems would arise if Congress were given the power (via an anti-disparagement amendment) to outlaw "disparagement of public officials". Can one simultaneously "respect the Office of the President" and "disrespect the holder of the office"? As for specifically restricting the military, that's a challenging issue. It is a court-martial offense for a commissioned military officer to use contemptuous words against the President and Congress (10 USC 888), and by directive from the Department of Defense this also applies to enlisted personnel. SCOTUS in Parker v. Levy, 417 U.S. 733 articulated the Military Necessity doctrine, that "The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it". So "not my President" probably is illegal for soldiers. This article reviews various First Amendment issues as they pertain to the military. | First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows. | The president has the power to issue an executive order, which must either be supported by the Constitution or by some act of Congress. If a president were to apparently overstep his authority, someone would have to sue him and the Supreme Court would decide whether he did have that authority. For example, Truman thought that he had the power to nationalize steel mills, but Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 determined otherwise. There have been few cases where courts have overturned an executive order. Matters of immigration are not outside of the executive power of POTUS. Obama issued a dozen orders aimed at stopping deportation of illegal immigrants. The matter ended up in SCOTUS, which tersely declined to overturn the lower court ruling (that he didn't have that power). Congress can restate the law to clearly take away a power (assuming it is not a constitutional power, and immigration is not a constitutional power / duty). In this sense, the president can "write laws" the same way that various federal regulatory agencies can "write laws", or how courts can "write laws". The subject matter of such laws is limited, so while an act of Congress is limited only by the Constitution, executive-branch law has further underlying statutory limits. Only Congress can unilaterally pass a statute: the power to write law is available to pretty much all branches of government. As for immigration statutes, 8 USC 1182 provides the general hook for such a presidential decree – the code would require major rewriting to clearly take away that power. It has to be remembered that Congress creates laws and cannot enforce them: the executive branch enforces them. Any law whatsoever restricting immigration therefore involves the president. | Vice President Aaron Burr was indicted in his last year as Vice President in both New Jersey and New York. The crime was killing Alexander Hamilton in an (illegal) duel. His solution? Simply don't go to those states. Eventually the charges were dropped on technical reasons. But it was nevertheless clear that no one considered it a particular problem for a sitting Vice President to be indicted in multiple states at a time, or even just one. This bit of history is even mentioned in the revised DOJ opinion referred to in Putvi's answer. Ultimately that opinion decides that the comparison between a Vice President and President is apples-to-oranges nonsense—their relative levels of power, importance, and constitutional stature are radically different—, and no substantive inferences could be made from a VP's indictability to the President's. Of course, this DOJ opinion is just the opinion of DOJ lawyers. It is not a court opinion, nor otherwise binding. It does strike me as well-written and logically strong, but it is wholly untested in a court of law (SCOTUS or otherwise). It is simply their advice on what the best course of action the DOJ can take is, given their particular function and powers within the US government and overall constitution. The main conclusion being that those functions and powers are inadequate for the DOJ to decide if it is constitutionally sound to indict a sitting President (that's a job for the judiciary), and so simply advises that they avoid that powder keg and never do so. The opinions actually do specifically hold that it might be constitutional in the right situations; they simply conclude they cannot and should not be the ones deciding if a particular case qualifies or not. For a more definitive answer, you may have to wait for various court cases against President Trump and his administration to make their way through the system. In several of them the President's/White House's lawyers have argued for absolute immunity on all criminal matters, state or federal. The judges have, to date, seemed disinclined to agree; many seem straight-up shocked that this is being seriously proposed to them. But those cases are still in progress, so we can at best make random guesses at what the actual opinions will be, and it is even harder to know what will happen on the almost-certain appeals up to the Supreme Court. | Unequivocally yes. An Australian judgement asserted this by (happily) adopting the reasoning of the US courts: The matter also came up for discussion in the Communist Party case where Justice Dixon adopted the U.S. view that: ... it is within the necessary power of the Federal government to protect its own existence and the unhindered play of its legitimate activities. And to this end, it may provide for the punishment of treason, the suppression of insurrection or rebellion and for the putting-down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government ... A plane (or ship, or train etc.) that is not responding to hails and acting to put citizens at risk is a legitimate target of military force. It doesn't matter if it is acting that way because of a deliberate decision of its controllers (e.g. terrorists), because it's not under control or because it's controllers are idiots. | Questions about "why a law is ..." are political questions not legal questions and you may get better traction on politics. However, I will address the legal issues and offer some speculation on the politics. The states named in the preamble to the Constitution (an Act of British Parliament) as original states were New South Wales, Victoria, Queensland, South Australia and Tasmania. Western Australia was not named at the time of the passing of the Act or Royal Assent because the people of that colony had not vet made their mind up. Legal Issues WA decided to join in a vote held on 31 December 1900 and Australia came into being on 1 January 1901. Therefore, even though not named as such, WA was an "original state". Since all 6 states in the Federation are "original states" the clauses have no practical effect at present. However, there have been a number of proposals to add new states, either by subdividing existing states or by granting statehood to the territories of Northern Territory and/or the Australian Capital Territory. If such were to come to pass, the clauses would have practical effect. In 1998, Norther Territorials rejected an offer of statehood that would have given them 3 senators as a state and 2 representatives based on population (currently they have 2 senators and 2 representatives). Clearly, they were not being given the same privileges as an "original state". In 2015 all Australian governments agreed in principle that the NT should become a state by 2018, however, as it is now 2017 and no action has been taken this seems unlikely. Political Issues Politics is complicated: just as much in the late 19th century as it is in the early 21st. Negotiations between the colonies were fraught and federation was by no means a certain outcome. New Zealand and Fiji dropped out early and each forged its own path to nationhood. However, by the late 1890s it was clear that the 5 eastern colonies would federate with or without Western Australia. It seems likely that this provision served multiple purposes including: putting pressure on WA to join at the outset - the deal they got as a "Johnny come lately" may not have been as good. protecting "white" Australia - the drafters of the Constitution were men of their times, that is to say: racist, misogynist bigots. Any non-original states were likely to be former British colonies in the Pacific or South-East Asia, this clause would allow the nation to reduce the influence these non-white states might have. | The First Amendment does indeed guarantee the freedom to express any idea or viewpoint, the limitation being incitement to immediate lawless action, recently reaffirmed in Snyder v. Phelps (many free speech cases have been about criminal restrictions on speech, this applied even to a suit for intentional infliction of emotional distress). There isn't a clear line that distinguishes "advocating violation of the law" and "inciting to immediate lawlessness". Saying "(You should) shoot The Man whenever you see him" would be protected expression, but "There's a cop, somebody kill him" would be incitement. It also has to be a "credible" incitement, so saying "Kill him now!" to a room full of pacifist nuns would not constitute incitement. Things said to an angry mob would be more along the lines of incitement. | In the US, it is not illegal to lie in general. This includes lying about someone: it's not illegal per se to lie about them. What is illegal is slander and libel: lying about someone in a way that hurts their reputation. The defamation doctrine in the US is generally a common-law doctrine (i.e. the rules and limits are based on court decisions, rather than on laws passed by legislatures), although it may differ state-by-state. Depending on the state, some defamation may be criminal; there is no federal criminal defamation. US defamation law is largely defined through its interaction with the First Amendment. While libel is not constitutionally protected, punishment for libel is seriously limited by the need to avoid either punishing protected speech, or chilling potential protected speech (i.e. discouraging people from saying something that would in fact be protected, because they aren't sure whether or not it's protected). Libel in the US only applies to a false statement of fact, or an opinion which implies some false fact. If it can't actually be proven incorrect, it can't be libelous in the US. The question of whether it's a statement of fact doesn't just depend on the literal speech; it includes things like the context, and is a question about what a reasonable person would think. If I were to claim that someone was "literally Hitler," for instance, no reasonable person would think I was seriously claiming that the person was the former leader of Nazi Germany. Now, no reasonable person who is familiar with Twitter would ever assume that the tweet meant Obama literally stood up in front of the UN and said "Please accept this nothingburger in place of a respectable climate plan." So, it only counts as libel if a reasonable person would think it implies some fact. But a reasonable person familiar with Twitter would most likely think Miesel is saying "The president's pollution plan is a pointless piece of political puffery planned to placate principalities and potentates." This is basically a matter of opinion. Even to the extent that it's not a matter of opinion, public figures in the US cannot win a defamation suit unless they show "actual malice:" the speaker must actually know or actually strongly suspect that their statement is false in some material way. It's not enough that a reasonable person would think "this might not be true;" the speaker themselves must doubt the truth of it (they must be reckless, not just negligent). Courts are also extremely deferential to defendants in these cases. While it is technically possible for a public figure to prove defamation, it is exceptionally difficult. If the person didn't know they were falsely attributing the quote, and honesty thought it was correct, they're in the clear. If the quote isn't supposed to be a statement of fact, but it implies false facts, but the speaker honestly thinks those facts are true, they're in the clear. Private figures don't have to meet the actual malice standard to prove defamation. They still need to show that the statement is a statement of fact or something implying false facts; if it's obviously a summary of something they really said, possibly with added editorial comment, they can't prove defamation. |
Is the government of China immune from lawsuits by states and individuals in the US? Some US states and individuals are suing China over the coronavirus. Is China immune from such lawsuits due to sovereign immunity, or does such immunity only apply to the US government? edit: NYT is now saying that the purpose of the lawsuits is to prod Congress to make it easier to sue China. | The Iran lawsuit depended on a statute directed against Iran, not applicable to the Chinese government. The Alien Tort Claims Act, which gives US federal courts original jurisdiction for torts "committed in violation of the law of nations or a treaty of the United States", neither of which is likely to describe the allegation against the Chinese government. The Chinese government probably would not entertain such a suit, and US courts do not have jurisdiction. It is also unclear how much US property is owned by the government of the PRC which could be seized: reports simply talk about "owned by the Chinese" without distinguishing government vs. private ownership. | A government can pass laws which cannot be fully enforced, or even widely enforced. Such laws are nonetheless legally valid, unless repealed by the legislature, or struck down by the courts in accord with the procedures in the particular country's laws. In common law countries, it is often a defense to a criminal charge that a law is impossible to comply with, but this only arises when there is an attempt to enforce the law, and it is in fact impossible for that defendant to comply with that law. If the defendant can comply, it is not relevant that other defendants might not be able to. If taxes were assessed that totaled more than all the legal money in circulation, the government might increase the money supply. Or it might not try to collect in all cases, or not collect the full amount. Otherwise many taxpayers might enter bankruptcy. In other cases of impossible laws, the results would depend on just how enforcement was attempted. The government cannot magically give people the ability to do things they cannot. A law requiring everyone to fly by flapping his or her arms would not secure compliance. It might put a lot of people in jail if people were arrested for not flying by hand. A law requiring everyone to register with a government agency before stepping outside would be foolish, and perhaps unenforceable under current conditions (but perhaps would be sensible in a Moon colony). Such a law would be legal (although it might fail a "rational basis test in the US) but an attempt to enforce it widely would lead to confusion or perhaps resistance. Most governments are not so foolish as to pass laws that cannot be complied with by large numbers of people, even if they have the legal power to pass such laws. A government that passed such a law might become unpopular, or even be overthrown. In some cases in history, laws that could not be complied with by particular groups were used as ways to persecute those groups. | Yes, this is allowed. A famous example was the Rodney King beating, where police officers were acquitted at the state level but convicted federally. US v. Lanza formalized the rule, and it has survived the application of the double jeopardy rule to the states. It's called the separate sovereigns doctrine, and also applies to prosecutions by two states (see Heath v. Alabama) and by an Indian tribe and the feds (see US v. Wheeler). It does not apply between DC and the feds or territories and the feds, because DC and territorial laws are established under the power of the federal government. These prosecutions are uncommon. As far as the feds go, they normally consider a state prosecution to have satisfied the federal interest in the case (win or lose). But prosecution by multiple sovereigns is not barred by the Fifth Amendment. | As @James K indicated in a comment: Private law involves relationships between individuals, such as the law of contracts and torts, (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private individuals, whereas public law involves interrelations between the state and the general population. Source: Wikipedia The effect of section 156 is that anyone adversely affected by a public authority's failings under Part 11, Chapter 1 cannot sue: any redress is by way of judicial review. The Explanatory Note to section 156 offers this example: A local council fails to give due regard to the requirements of the public sector equality duty when deciding to stop funding a local women’s refuge. An individual would not be able to sue the local council as a result and claim compensation. She would need to consider whether to pursue judicial review proceedings. | The other answers have addressed the letter of the question you asked, but I wanted to correct a misconception in your question statement: ... It's bad enough to suffer some horrible side effect, but not even being able to seek compensation is just the last straw. Note that under the PREP Act, you can seek compensation from the government if you are injured by a covered vaccine, including (at this time) a COVID-19 vaccine: The Public Readiness and Emergency Preparedness Act (PREP Act) authorizes the Countermeasures Injury Compensation Program (CICP) to provide benefits to certain individuals or estates of individuals who sustain a covered serious physical injury as the direct result of the administration or use of covered countermeasures identified in and administered or used under a PREP Act declaration. The CICP also may provide benefits to certain survivors of individuals who die as a direct result of the administration or use of such covered countermeasures. The PREP Act declaration for medical countermeasures against COVID-19 states that the covered countermeasures are: any antiviral, any drug, any biologic, any diagnostic, any other device, any respiratory protective device, or any vaccine manufactured, used, designed, developed, modified, licensed, or procured: a. to diagnose, mitigate, prevent, treat, or cure COVID–19, or the transmission of SARS–CoV–2 or a virus mutating therefrom; or b. to limit the harm that COVID–19, or the transmission of SARS–CoV–2 or a virus mutating therefrom, might otherwise cause; So it is incorrect to say that you would be unable to seek compensation if you were injured by Pfizer's COVID-19 vaccine. You would just have to seek compensation from the government rather than suing Pfizer. As noted in the other answers, this protection under the PREP Act will lapse by October 1, 2024. However, it is also entirely plausible that this vaccine will be recommended on a regular basis going forward, in which case it would end up being covered by the National Vaccine Injury Compensation Program instead. This program is designed to protect manufacturers of vaccines that are routinely administered to children and pregnant women, the idea being that the threat of costly lawsuits might otherwise dissuade manufacturers from making such vaccines. Your seasonal flu shot, for example, is covered under this program; if you sustained an injury from that shot, you would be able to file a claim for benefits under this program. If we end up in a situation where COVID-19 vaccines are required regularly for most people (which seems entirely plausible at this point), then I would wager that they would end up being folded into this program. | new-zealand The New Zealand Supreme Court describes judicial immunity as "common law doctrine": Judicial immunity is common law doctrine [citing to the English line of case law, including Sirros]. Although its existence is now acknowledged in statute, its scope remains a matter of common law. Attorney-General v Chapman [2011] NZSC 110 canada The immunity of superior court judges in Canada, including judges of the Quebec Superior Court, is inherited from English law. (Morier and Boily v. Rivard, [1985] 2 SCR 716, at paragraph 85) That judgment goes on to cite English cases dating back to 1607, and a doctrinal text (H. Brun and G. Tremblay, Droit constitutionnel) also agreeing that the immunity stems from common law (translation): This absolute immunity is a rule of the common law applicable to superior court judges even where bad faith has been alleged. Courts in Canada have also recognized that judicial immunity is now constitutionalized, through the unwritten constitutional principle of judicial independence. See e.g. Taylor v. Canada (Attorney General), [2000] 3 FC 298 (C.A.) at paragraphs 58-60. | The Supreme Court rules in US v. Wong Kim Ark ruled that the Fourteenth Amendment, which states All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside It is not disputed that said areas are "in the United States". The court found that "subject to the jurisdiction thereof" is intended to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state neither of which are the case in your scenario. Technically, the child is not "eligible" for citizenship, the child has US citizenship, it is just a matter of getting a government official to recognize it (e.g. in issuing a passport). | Absolutely not. Lack of authority Law enforcement officers do not have the authority to grant immunity from prosecution. The decision to prosecute lies with the district attorney's office. Courts have sometimes held that a promise of immunity by a police officer can make resulting statements inadmissible, but that's it -- the state is not bound by the police officer's promise to not prosecute, except in exceptional cases. They can gather other evidence and prosecute anyway. Prospective immunity The contract claims to provide immunity against prosecution for future crimes. Contracts against public policy are void, and I'm having trouble thinking of something which is more against public policy than a license to commit crimes. No one can offer that immunity through contract. In a recent trial of a Boston mob boss, he attempted to claim that a federal prosecutor had given him immunity for any and all future crimes for some time period; the court did not accept that, because a license to break the law is not a valid contract. Public authority There is a situation in which certain officers can grant authority to break certain laws: to catch bigger criminals. However, for fairly obvious reasons, there are extremely strict rules on when this is valid, both on the government procedure side and the claiming-the-defense side. The defense can only work if the defendant honestly believed the government had authorized his actions, if the government actually had authorized them, or if he followed official government legal advice. In this case, the defendant has no idea if government officials have agreed to the terms; he would have approximately no chance of convincing anyone he legitimately thought that the government approved of his actions. They certainly wouldn't be actually properly authorized, and he hasn't sought advice from the government. Other issues Police aren't the only people on this site. An investigation tends to involve one or more non-government agents who provide testimony in court. No contract with a private party can stop them from testifying in a criminal trial; certain relationships mean testimony isn't allowed (e.g. a lawyer can't testify about dealings with their client without client permission), but regular users could be required to testify against the site operator (possibly on the basis of actual immunity). Sources Public authority stuff: this Justice Department page, plus some discussion in this order. Prospective immunity: that same order. Lack of authority: myriad readings. |
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